Citation Nr: 1719167 Decision Date: 05/31/17 Archive Date: 06/06/17 DOCKET NO. 10-20 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a compensable rating for erectile dysfunction. REPRESENTATION Appellant represented by: The American Legion INTRODUCTION The veteran served on active duty from April 1969 to April 1971. This appeal arises before the Board of Veterans' Appeals (Board) from a November 2014 rating decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction, which established service connection for erectile dysfunction and assigned a 0 percent rating. FINDINGS OF FACT The Veteran has erectile dysfunction, but no penile deformity or anatomical loss of any part of the penis. CONCLUSION OF LAW The criteria for a compensable rating for erectile dysfunction are not met. 38 U.S.C.A. §§ 1155, 5103A (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.115b, Diagnostic Codes 7520-7522 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014 & Supp. 2015); 38 C.F.R. § 3.159 (2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from any notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged any deficiency of notice or development. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate awareness of what is necessary to substantiate claim). Thus, VA has satisfied the duty to notify the appellant. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran allowed a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an adequate examination for the claims. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The severity of a disability is ascertained, for VA rating purposes, by application of the criteria set forth in VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2016). Erectile dysfunction is rated pursuant to the criteria found in Diagnostic Code 7520 through 7522. 38 C.F.R. § 4.115b (2016). A rating of 10 percent is warranted where the evidence shows penile deformity with loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2016). A 20 percent rating is warranted for removal of the glans of the penis. 38 C.F.R. § 4.115b, Diagnostic Code 7521 (2016). A 30 percent rating is warranted for the removal of half or more of the penis. 38 C.F.R. § 4.115b, Diagnostic Code 7520 (2016). In every instance where the Rating Schedule does not provide a 0 percent rating, a 0 percent rating will be assigned where the requirements for a compensable rating are not met. 38 C.F.R. § 4.31 (2016). The Veteran has already established entitlement to special monthly compensation based on the loss of use of a creative organ. 38 U.S.C.A. § 1114(k) (West 2014). An August 2014 VA examination found that the Veteran had erectile dysfunction and could not achieve an erection sufficient for penetration and ejaculation, with or without medication. On physical examination, the penis, testes, and epididymis were normal. The other treatment and examinations of record do not show evidence of any penile deformity, or anatomical loss of the penis or testes. The Veteran has not alleged deformity of the penis or anatomical loss of any part of the penis. The Veteran has not submitted any evidence to support a finding that there is any deformity of the penis or loss of any part of the penis. The Board finds that the August 2014 VA examination which found a normal penis is the most persuasive evidence in this case because it was performed by a medical professional and was responsive to the applicable rating criteria. Accordingly, the Board finds that the criteria for a compensable rating for erectile dysfunction are not met. The Board finds that the preponderance of the evidence is against the assignment of a compensable rating and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). ORDER Entitlement to a compensable rating for erectile dysfunction is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs