Citation Nr: 1752436 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 10-01 748 ) 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. ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1966 to May 1968 and from September 1968 to June 1970. This matter comes before the Board of Veterans Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This matter was remanded by the Board most recently in April 2017 for further evidentiary development. FINDING OF FACT The Veteran's erectile dysfunction disability is manifested by loss of erectile power, but not by penile deformity. CONCLUSION OF LAW The criteria for a compensable rating for erectile dysfunction have not been met. 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.115b, Diagnostic Code 7522 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duty to Notify and Assist The Veteran has not 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 duty to assist argument). II. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. The Veteran is in receipt of a noncompensable evaluation for erectile dysfunction associated with diabetes mellitus under Diagnostic Code 7522. 38 C.F.R. § 4.115b. The Veteran filed a claim for a separate evaluation for erectile dysfunction in April 2010. There is no specific diagnostic criterion for erectile dysfunction. See generally 38 C.F.R. § 4.115b, Ratings of the Genitourinary System. When a veteran is diagnosed with an unlisted disease, the condition must be rated under an analogous diagnostic code. See 38 C.F.R. §§ 4.20, 4.27. Here, the Veteran's erectile dysfunction has been rated by analogy under Diagnostic Code 7522, which represents an unlisted genitourinary disability evaluated by penis deformity with loss of erectile power. See 38 C.F.R. § 4.115b, Diagnostic Code 7522. Diagnostic Code 7522 awards a 20 percent rating for deformity of the penis with loss of erectile power. This is the only schedular rating provided under this diagnostic code. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. A note for Diagnostic Code 7522 indicates that, when evaluating any claim involving loss or loss of use of one or more creative organs, refer to 38 C.F.R. § 3.350 to determine whether the veteran may be entitled to special monthly compensation. The Board notes that the Veteran is already in receipt of special monthly compensation under 38 U.S.C. § 1114 (k) and 38 C.F.R. 3.350 (a) due to loss of use of a creative organ, effective May 8, 2001. This compensation contemplates impotence, and may be awarded even if the veteran can achieve erection and penetration with the use of medication. See Veterans Benefits Administration (VBA) Adjudication Manual M21-1, Part III.iv.4.I.3.c. (Entitlement to SMC Associated With Erectile Dysfunction). A separate rating under Diagnostic Code 7522 may only be awarded deformity of the penis with loss of erectile power. See M21-1, Part III.iv.4.I.3.b. (Deformity of the Penis with Loss of Erectile Power). VBA has indicated, however, that a compensable rating under Diagnostic Code 7522 is not warranted in the absence of penile deformity, and instructs that such deformity be "evident." Id. At the Veteran's most recent VA examination in August 2017, erectile dysfunction was documented as the result of diabetes. The examiner reported that the Veteran could not achieve an erection sufficient for penetration and ejaculation even with medication. Physical examination of penis, testes, and epididymis was normal. The examiner concluded that there was no penile deformity and that a review of the Veteran's medical records and claims file revealed no history of penile deformity. As noted in the Board's April 2017 Remand, an October 2014 VA examination was inadequate for rating purposes. However, the Board notes that there was no indication of penile deformity at the October 2014 VA examination, or at subsequent September 2015 and January 2017 VA prostate examinations. A review of the complete record reveals no evidence of penile deformity at any point. In consideration of the evidence, the Board finds that a compensable rating is not warranted. The medical evidence does not show that the Veteran has a penile deformity. The August 2017 VA examiner notes, in pertinent part, that a review of the record does not reveal any documentation of a penile deformity. During this examination, the Veteran denied any penile deformity and none was noted in the clinical examination. The Veteran reported that with medication he is able to obtain and erection but not sufficiently for sexual intercourse. To the degree that the Veteran has asserted that he has a deformity of the penis, the evidence of record has not shown that the Veteran has had any specialized medical training or expertise. Accordingly, he is not competent to provide an opinion of a medical matter, such as whether his symptoms satisfy specific rating criteria. See Bostain v. West, 11 Vet. App. 124, 127 (1998). As such, his assertion cannot constitute competent medical evidence that his disability warrants a specific rating. As the evidence does not show that the Veteran has penile deformity in addition to loss of erectile power, a compensable evaluation is not warranted for erectile dysfunction. See 38 C.F.R. §§ 4.31, 4.115(b), Diagnostic Code 7522. The Board must conclude that, absent deformity of the penis, a compensable rating for penile deformity with loss of erectile power is not warranted. As noted above, Diagnostic Code 7522 requires both deformity of the penis and erectile dysfunction for assignment of a 20 percent evaluation. Additionally, as noted above, the Veteran has already been granted SMC for loss of use of a creative organ effective May 8, 2001. ORDER Entitlement to a compensable rating for erectile dysfunction is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs