Citation Nr: 1735546 Decision Date: 08/28/17 Archive Date: 09/06/17 DOCKET NO. 13-29 977 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to a compensable rating for erectile dysfunction. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. D. Cross, Associate Counsel INTRODUCTION The Veteran had active service from April 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The issue of an increased rating for post cancer status-post radical prostatectomy has been raised by the record in an April 2013 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). FINDINGS OF FACT 1. The Veteran has no penile deformity or abnormality associated with his erectile dysfunction. 2. Residuals of the Veteran's prostate cancer with radical prostatectomy include erectile dysfunction, a condition for which the Veteran is receiving special monthly compensation. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for erectile dysfunction are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.20, 4.31, 4.115b, DC 7522 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran contends that he is entitled to a rating in excess of 0 percent for erectile dysfunction as this has caused mental stress due to impotence as a result of surgery for his service connected prostate cancer. In an April 2013 statement, the Veteran asserts that a urologist informed him that his problems with impotence would not get better. The Veteran also states that he has frequent urine leakage. Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2016). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2016). The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1 (2016); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another provided that VA offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429 (1995). The Veteran's entire history is reviewed when assigning ratings. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R§ 4.7 (2016). Reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2016). Rating the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disability is not duplicative of or overlapping with the symptomatology of the other disability. 38 C.F.R. § 4.14 (2016); Esteban v. Brown, 6 Vet. App. 259 (1994). The RO has rated the Veteran's erectile dysfunction as noncompensably disabling pursuant to DC 7522, by analogy. 38 C.F.R. §§ 4.20, 4.115b, DC 7522. Because the Veteran's erectile dysfunction involves his penis, this analogous rating most closely approximates the Veteran's disability picture. Based on this condition, the RO has also assigned the Veteran special monthly compensation under 38 U.S.C.A. § 1114 (k) and 38 C.F.R. § 3.350 (a) for loss of use of a creative organ. Thus, he is being compensated for his symptoms. DC 7522 provides that a 20 percent rating is assignable for a penis deformity with loss of erectile power. 38 C.F.R. § 4,115b, DC 7522. When a DC in the rating schedule does not provide criteria for a 0 percent rating and the criteria for a compensable rating are not met, a 0 percent rating is to be assigned. 38 C.F.R. § 4.31. In private treatment records dated from November 2008 through December 2012, there is no mention or complaints of penis deformity. In fact, in a December 2012 private treatment record, Dr. J.G.M. noted that there were no abnormalities in the inguinal area. In a March 2013 VA examination, the Veteran was diagnosed with erectile dysfunction as residuals of surgery for prostate cancer. The examination did not note any penis deformity association with erectile dysfunction or otherwise. This disability picture thus does not more nearly approximate the criteria for a higher initial schedular rating. In a April 2013 statement, the Veteran asserts that since his January 2010 surgical procedure he has experienced impotence. The Veteran states that his impotence has led to frustration physically, emotionally, and mentally. The Veteran then describes problems with urine leakage. The Veteran does not have nor allege any penile deformities. It appears the Veteran, through his April 2013 statement, actually intends to file a claim for increased rating for post cancer status-post radical prostatectomy due to increased urinary leakage. More specifically, the Veteran asserts that his bladder leakage problem is worsening. He states that he experienced slight leakage following surgery, but he now experiences it at a frequent rate making it necessary for him to wear a pad. The Board does not have jurisdiction over this matter and it is referred to the AOJ. The Veteran has not submitted any additional evidence that would lead to a consideration of a higher evaluation on DC 7522. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 0 percent for the Veteran's erectile dysfunction disability and must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement a compensable rating for erectile dysfunction is denied. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs