Citation Nr: 1724967	
Decision Date: 06/30/17    Archive Date: 07/10/17

DOCKET NO.  11-03 881	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to a disability rating in excess of 20 percent for deformity of the penis, due to scarring and erectile dysfunction. 

2.  Entitlement to a disability rating in excess of 20 percent for degenerative disc disease, lumbar spine.  

3.  Entitlement to a compensable disability rating for bilateral hearing loss.

4.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to October 4, 2016.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

G. Fraser, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1970 to July 1990.  

This appeal comes before the Board of Veterans' Appeals (Board) from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

The record before the Board consists of electronic records in systems known as Virtual VA and the Veterans Benefits Management System.

The issues of entitlement to increased ratings for the service connected low back disability and bilateral hearing loss, as well as entitlement to a TDIU rating are addressed in the REMAND that follows the ORDER section of this decision.


FINDING OF FACT

The Veteran's service-connected deformity of the penis, due to scarring and erectile dysfunction is assigned a 20 percent rating, which is the maximum rating authorized under Diagnostic Code 7522 (2016).


CONCLUSION OF LAW

There is no legal basis for the assignment of a schedular evaluation in excess of 20 percent for deformity of the penis, due to scarring and erectile dysfunction.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.115(b), Diagnostic Code 7522 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Assist

As a preliminary matter the Board notes that, with respect to the Veteran's claim for an increased rating for deformity of the penis, due to scarring and erectile dysfunction, the pertinent facts in this case are not in dispute and the law is dispositive.  Consequently, there is no additional evidence that could be obtained to substantiate the claim, and no further action is required to comply with VA's duties to notify and assist.  See Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 5-2004 (June 23, 2004).

General Legal Criteria

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2016).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2016).  

In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Factual Background and Analysis

At the outset, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran has been assigned a 20 percent rating since August 1990 for deformity of the penis, due to scarring and erectile dysfunction, which resulted from a miscarried circumcision procedure in service.  The Veteran has on several occasions noted the understandably traumatic impact this event has had upon his life.  The May 2010 rating decision on appeal confirmed and continued the Veteran's previously assigned disability evaluation.  The Veteran appealed that decision.  

The originating agency denied the Veteran's request for a higher rating because the maximum schedular rating authorized for penile deformity is 20 percent.  

The Veteran's service-connected deformity of the penis, due to scarring and erectile dysfunction is evaluated as 20 percent disabling, which is the maximum schedular rating available for such disability.  See 38 C.F.R. §4.115(b), Diagnostic Code 7522.  As there is no legal basis upon which to award a separate schedular evaluation or higher schedular rating for deformity of the penis, the Veteran's claim for such a benefit is without legal merit.  Sabonis v. Brown, 6 Vet. App. 426 (1994). 

VA must consider all favorable lay evidence of record.  38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board has accordingly considered the lay evidence offered by the Veteran, in the form of correspondence to VA, in addition to the medical evidence cited above.  

The Veteran is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording the Veteran full competence and credibility, the evidence simply does not show entitlement to a higher rating under the applicable diagnostic code.  

Consideration has been given to assigning a staged rating for the disability decided herein, but for the reasons explained above the Board has determined the assigned rating is warranted throughout the entire rating period.  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board has considered whether the case should be referred to the Director of the Compensation Service for extra-schedular consideration.  In determining whether a case should be referred for extra-schedular consideration, the Board must initially compare the level of severity and the symptomatology of the claimant's disabilities with the established criteria provided in the rating schedule for each disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008). 

In this case, the Veteran's disability-penile deformity-is wholly and expressly contemplated by the schedular criteria.  Therefore, the Board has no reason to believe the disability was not adequately evaluated and compensated by the rating schedule.  Accordingly, referral of this claim for extra-schedular consideration under 38 C.F.R. § 3.321(b) is not in order.  Further, the Board notes that in order to further compensate the Veteran for his impairment, the RO has also assigned a special monthly compensation, as a result of the Veteran's loss of use of a creative organ.  However, the Board finds there is simply no legal basis for the assignment of a separate or higher rating under the applicable diagnostic code.  


ORDER

Entitlement to a disability rating in excess of 20 percent for deformity of the penis, due to scarring and erectile dysfunction is denied.




REMAND

The Board finds additional development is required before the Veteran's remaining claims are decided.

Missing Records

Initially, the Board notes the Veteran recently provided the RO with several VA Form 21-4142 authorizations to obtain medical records from the Walter Reed Army Medical Center, National Institutes of Health, Cleveland Clinic, and Dumfries Army Medical Center; however, proper development has not been effectuated to obtain these records.  The Veteran has reported ongoing treatment for numerous disabilities at these various facilities, and as such, these records may provide probative evidence that would assist in establishing his claims for higher disability ratings or entitlement to a TDIU.  As such, all indicated development must be effectuated to obtain these records.  

Increased Rating Lower Back

Next, the Board notes the Veteran underwent a VA back examination in December 2016.  To date, the RO has not considered this evidence in the first instance.  Since the Veteran has not waived RO review, the Board is precluded from considering this evidence in the first instance under 38 U.S.C.A. § 7105.  Therefore, this issue must be remanded at this time.  

TDIU

Finally, the RO should obtain a medical opinion on remand, which addresses the cumulative functional impairments caused by the Veteran's service-connected disabilities, as well as how those impairments would impact upon both physical and sedentary employment.  


On remand, relevant ongoing medical records should also be obtained.  38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).    

Accordingly, this case is REMANDED for the following actions: 

1.  Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's remaining issues on appeal, to specifically include any more recent treatment records related to the claimed disabilities, as well as the Veteran's medical records from the Walter Reed Army Medical Center, National Institutes of Health, Cleveland Clinic, and Dumfries Army Medical Center.  If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e).  

2.  Then, obtain a medical opinion from an examiner with sufficient expertise to opine on the occupational effects caused by the Veteran's service-connected disabilities throughout the period of the appeal.  A new examination of the Veteran should only be conducted if deemed necessary by the examiner.  The examiner should provide concrete examples of functional impairments caused by the Veteran's service-connected conditions, to include the medications taken for any disability.  The types of impairments the examiner should address include, but are not limited to, walking, sitting, lifting and standing limitations, impaired ability to interact socially, as well as problems with memory and concentration.  The examiner must discuss and consider the Veteran's competent lay statements. 


In addition, the examiner should comment on whether there is a 50 percent or better probability that the Veteran's service-connected disabilities, either alone or in concert, have been sufficiently disabling to preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background.

3.  Thereafter, undertake any other indicated development.  

4.  Finally, readjudicate the issues on appeal.  If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).



_________________________________________________
T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs