Citation Nr: 1752813 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 12-11 518A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating for erectile dysfunction (ED). 2. Entitlement to service connection for a heart disorder, to include as secondary to service-connected hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from January 1987 to January 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The RO in St. Petersburg, Florida certified the case to the Board on appeal. In an October 2014 decision, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development and adjudication. The case has since been returned to the Board for appellate review. The Board finds that the RO substantially complied with the October 2014 remand directives, to the extent possible, and no further action in this regard is warranted. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (concluding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with the Board's remand instructions). In addition to the issues listed above, the Board remanded the Veteran's service connection claims for tinea versicolor (ringworm); and other skin disorder, claimed as rash or dermatitis. In a subsequent February 2017 rating decision, the RO granted entitlement to service connection for inactive lichen planus with residual scarring of glans penis (previously claimed as eczema, dermatitis, ringworm, and rash). The grant of service connection for this disability constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed, Cir. 1997). FINDINGS OF FACT 1. The Veteran's ED has been productive of loss of erectile power, but not deformity of the penis. 2. The Veteran's heart disorder, diagnosed as hypertensive heart disease, is attributable to his service-connected hypertension. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for ED have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.115b, Diagnostic Code 7522 (2017). 2. The Veteran's heart disorder, diagnosed as hypertensive heart disease, is proximately due to, or the result of, his service-connected hypertension. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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). II. Law and Analysis Initial Compensable Evaluation for ED Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation 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. Evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 126-27; Hart v. Mansfield, 21 Vet. App. 505 (2007). Such separate disability ratings are known as staged ratings. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is currently in receipt of a noncompensable disability rating for ED under Diagnostic Code 7522, 38 C.F.R. § 4.115b, effective from February 1, 2009. Under Diagnostic Code 7522, a 20 percent rating is warranted for deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b. A footnote to Diagnostic Code 7522 also indicates that the disability is to be reviewed for entitlement to special monthly compensation for loss of use of a creative organ under 38 C.F.R. § 3.350(a). No other evaluation is provided for under this diagnostic code. Two requirements must be met before a 20 percent evaluation can be assigned: (1) the deformity must be evident; and (2) the deformity must be accompanied by loss of erectile power. Simply stated, the condition is not compensable in the absence of penile deformity. VBA Manual M21-1, III.iv.4.I.3.b. The Veteran underwent a VA examination related to his ED in January 2010. During the examination, the Veteran reported that he had been diagnosed with ED/impotence. The Veteran was unable to achieve and maintain an erection. The Veteran also stated that it hurt to ejaculate, and his left testes swelled up. Treatment for his symptoms included oral medication and psychological consultation. The treatment had helped his sexual functioning. A physical examination of the penis revealed normal findings. The testes were also normal upon examination. No genital fistula was noted. The record also stated that the Veteran had been diagnosed with a spermatic cord neoplasm, and this tumor was benign. The Veteran additionally reported experiencing chronic prostatitis/epididymitis. The Veteran reportedly urinated 15 times a day at intervals of 2 hours. At night, he urinated 4 times at intervals of 1 hour. The Veteran described problems starting urination and having a weak and hesitant urine flow. He did not experience urinary incontinence. The examiner noted that the Veteran's epididymitis (bacterial) and his spermatic cord neoplasm, testicular (left), had resolved. There was also no pathology to support a diagnosis of prostatitis. In March 2011, a record from National Naval Medical Center Bethesda noted that the Veteran had a penile rash that had developed 8 months before the visit. The area was painful to palpation, and it worsened with intercourse. A referral to a urologist had not yielded a diagnosis. An examination of the Veteran's penis showed an abnormal circumferential hypopigmented rash outlying the glans penis at the distal shaft. In April 2011, a Walter Reed Army Medical Center record noted an assessment of dermatitis in relation to the previously noted penile rash. The record indicated that the Veteran's penis was normal except for the rash. In May 2011, a Walter Reed Army Medical Center record noted that the Veteran's pain from his lesions was exacerbated by intercourse as they increased in size and became vesicular following intercourse. The Veteran denied having any urinary pain or discharge. The assessment was skin neoplasm of uncertain behavior. There was concern for a malignancy versus a reactive process. A punch biopsy was performed on the glans penis. As a result of the biopsy, a June 2011 report stated under the final diagnosis that there were features consistent with lichenoid dermatitis. The record commented that subtle changes included mild interface dermatitis and rare apoptotic keratinocytes as well as scattered macrophages. Lichen planus and early lichen sclerosis would be considered. A subsequent March 2013 record from Gulf Coast Dermatology noted that the Veteran still had lichen planus on the groin. A March 2013 consultation request from the 96th Medical Group stated that the Veteran had a past medical history of biopsy-proven lichen planus at the tip of the penis. At the biopsy site, he still experienced occasional bleeding with intercourse. He also had pain at the site. An April 2013 record from Gulf Coast Dermatology noted that a biopsy taken during the previous visit showed fibrosis of the skin on the penile sulcus and lichen planus. In September 2015, a urology consultation from 96th Medical Group stated that the Veteran had a history of lichenoid dermatitis on his penis. He presented with an adhesion of the foreskin to the glans penis that caused pain, and sometimes bleeding, with erection. The diagnoses were pain during urination (dysuria), and adhesions of prepuce and glans penis. The record stated that the adhesion on the foreskin and penis was from a previous biopsy due to the Veteran's lichen disease. In October 2015, an Eglin Air Force Base record related to a consultation noted that the Veteran had been diagnosed with lichenoid dermatitis on his penis as a result of a biopsy by a dermatologist. He had another biopsy performed 8 months before the visit that came back clean, but the site of the biopsy healed with some adhesions. Now the entire coronal sulcus became very irritated with erections as the skin pulled and caused crackling. The Veteran also reported having dysuria. An examination of the penis did not show any lesions or masses. There were no visible lesions around the coronal sulcus where the Veteran was feeling pain. On the left side of the coronal sulcus, there was a small, thin bridge of adhesion skin to the glans. The scrotum inspection showed no cysts, rashes, or lesions. There was a slight tenderness bilaterally. No masses were present. The left scrotum appeared "full" and consistent with lipomas. No abnormalities were indicated in the prostate examination. The Veteran was diagnosed with lichenoid dermatitis of the penis with persistent irritation and skin crackling. No obvious visible lesions were present to even consider any kind of surgical resection. The other diagnosis was dysuria and irritation to the urethra. Another VA examination to evaluate the Veteran's ED was conducted in November 2016. The examiner noted that the Veteran used clobetasol ointment and Neosporin cream as needed to treat skin lesions during a breakout. Regarding his ED, the examiner reported that the Veteran was unable to achieve an erection sufficient for penetration and ejaculation, and the use of medication had not remedied the problem. The Veteran had not had an orchiectomy, did not have renal dysfunction related to ED, and did not experience voiding dysfunction or retrograde ejaculation. The examiner additionally stated that the Veteran did not have a history of chronic epididymitis, epididymo-orchitis, or prostatitis. The Veteran also did not have a benign or malignant neoplasm or metastases related his ED. Upon physical examination, there were no abnormalities in the tests or epididymis. The prostate was not examined based on the examiner's determination that it was not relevant to the Veteran's ED. The penis was noted to be abnormal. The Veteran had a penis deformity in the form of scarring and contracted skin at the base of the glans penis that was slightly pulling the corona towards the penile shaft. These scars were not painful or unstable, and did not have a total area equal to or greater than 39 square centimeters (6 square inches). The scars at the base glans of the penis were 0.5 centimeters long by 0.5 centimeters wide. The diagnoses were ED with mild functional limitation; and penile deformity due to scarring from lichen planus with a mild functional limitation. The examiner stated that it was less likely than not that the diagnosed deformity was related to the Veteran's service-connected ED. As indicated by the phrasing of the diagnosis, the deformity was related to residual scarring from lichen planus, therefore affecting the Veteran's erection and overall sexual performance. In support of this opinion, the examiner highlighted the report from the March 2011 VA treatment record that the Veteran had a circumferential rash surround the base of the glans at the distal shaft area that was exquisitely painful to palpation and worsened specifically with intercourse; that record noted a diagnosis male ED, and lichen planus in penis, bleeds with erection during exacerbation. The examiner also noted that the statement from the May 2011 pathology report status post the biopsy of the glans penis that the Veteran had features consistent with lichenoid dermatitis. The Board finds that the examiner's opinion is highly probative as it was based on clinical findings as well as the examiner's review of the record. The examiner's conclusion is also consistent with the other evidence of record, including the findings in the November 2016 VA examination report for the Veteran's lichen planus chronicus. In that report, the examiner made the same determination that the scarring and contracted skin on the penis was caused by the Veteran's lichen planus. The examiner also noted that the pain from the contracted skin was a residual of lichen planus. Consequently, the most probative evidence of record demonstrates that the Veteran's noted penile deformity is attributable to his lichen planus rather than his ED. As previously discussed, the Veteran is separately service-connected for his lichen planus disability and the evaluation of the Veteran's lichen planus disability and its associated symptoms are not before the Board at this time. The Board also notes that the Veteran discussed prostatitis, bacterial epididymitis, and a spermatic cord neoplasm of the left testicle during the January 2010 VA examination. However, the Veteran was separately denied service connection for these disorders in the May 2010 rating decision, and these issues are not currently on appeal. The November 2016 VA examiner also determined the Veteran did not have a neoplasm or metastases attributable to his ED. There is also no indication in the record that the Veteran's reported dysuria, swelling of the left testes, or painful ejaculation is related to his service-connected ED. In this regard, the Board notes that the Veteran has suggested that his dysuria is a symptom of his lichen planus. See December 2016 Statement in Support of Claim. Moreover, the November 2016 VA examiner stated that no voiding dysfunction was present. Without evidence of a penile deformity associated with ED, the Board finds that the Veteran is not entitled to a compensable rating under Diagnostic Code 7522. In addition, special monthly compensation for loss of use of a creative organ has already been assigned effective from February 1, 2009, under 38 U.S.C. § 1114, subsection (k) and 38 C.F.R. § 3.350(a). In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable based on these facts. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. pp. 49, 55-57 (1990). Service Connection for a Heart Disorder Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted where a disability is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 48 (1995) (en banc). In this case, the record has raised the theory that the Veteran's heart disorder is secondary to his service-connected hypertension. The Veteran's service treatment records (STRs) show that in his June 1986 enlistment examination, both his heart and electrocardiogram (EKG) results were noted to be normal. The Veteran also denied having any relevant problems in his June 1986 Report of Medical History. These results were unchanged in subsequent service examinations dated in January 1987 and May 1988. The Veteran's EKG results continued to be normal in January 1989. On January 9, 1990, an EKG report noted a normal sinus rhythm and a nonspecific intraventricular conduction delay. The EKG was borderline. However, an electrocardiographic record from this date stated that the report was normal; and a January 10, 1990 service examination noted that the Veteran's EKG was within normal limits, and his heart was normal. Similar findings were reported in the February 1992 service examination. Later in December 1992, an EKG report stated that the Veteran had a normal sinus rhythm with a nonspecific intraventricular conduction delay. The Veteran was again noted to have a normal EKG on February 18, 1993, but another EKG report from the same day stated that the Veteran had a non-specific intraventricular conduction delay. In February 1994, an EKG report noted that the Veteran had sinus bradycardia with sinus arrhythmia. The EKG was otherwise normal. He also had a normal EKG in March 1995. In March 1997, an EKG report state that the Veteran had sinus bradycardia, but the EKG was otherwise normal. The associated service examination did not indicate that the Veteran's heart or EKG was abnormal. Subsequent STRs from January 1998, March 1998, February 1999, and February 2000 noted normal EKG results. In August 2006, the Veteran received a diagnosis of chest pain and hypertension. The record stated that the Veteran's EKG was generally unremarkable, and the Veteran was negative for cardiac signs. In an October 2006 Report of Medical history, the Veteran reported having pain or pressure in the chest; and high or low blood pressure. He denied having palpitation, pounding heart or abnormal heartbeat; heart trouble or murmur. The physician's summary noted that the Veteran was treated for high blood pressure in August 2006. No heart abnormalities were noted in the October 2006 service examination. An STR from this month stated that the Veteran had hypertension and was taking metoprolol. The Veteran reported the same symptoms with the addition of heart trouble or murmur in his June 2008 Report of Medical History. However, there were still no heart abnormalities documented in the June 2008 service examination. A subsequent September 2008 Report of Medical Assessment noted that the Veteran was hospitalized for high blood pressure in 2006. The record also stated that the Veteran took a beta blocker and a baby aspirin on a daily basis. This same month, the Veteran's EKG was borderline. In November 2008, the Veteran's problem list in a record from the Michael O'Callaghan Federal Hospital stated that he had an abnormal EKG. Prior to the Veteran's discharge, a January 2009 record from Walter Reed Army Medical Center reported that the Veteran had no cardiovascular symptoms. No abnormal findings were indicated in an examination of the Veteran's cardiovascular system. Following the Veteran's discharge, a March 2009 record from Walter Reed Army Medical Center noted that the Veteran's problems included hypertension. In January 2010, the Veteran underwent a VA examination related to his claim. At that time, a chest x-ray showed that the heart was unremarkable. The treadmill stress test was negative for exercise-induced myocardial ischemia and arrhythmia. The physical examination of the heart showed normal S1 and S2. There was no S3, and the S4 had a regular rate and rhythm. He did not have heaves or thrills, or murmurs or gallops. The Veteran informed the examiner that he had been diagnosed with an intraventricular conduction defect in March 1992. As a result of his heart problem, the Veteran experienced angina, shortness of breath, dizziness, and fatigue. He did not report congestive heart failure, a history of rheumatic heart disease, or a history of heart attacks. The examiner also noted that the Veteran was taking lisinopril for high blood pressure. Based on the examination results, the examiner opined that there was no pathology to support a diagnosis related to the Veteran's claimed intraventricular conduction defect. On July 6, 2010, a record from Dewitt Army Community Hospital noted that the Veteran sought treatment for symptoms of right vision loss, left arm numbness, and right arm tingling. The record stated that an MRI of the Veteran's brain did not have acute findings. An MRA of the brain and a neck MRA were normal. A CT scan was unremarkable, showing mild atrophy, but otherwise normal. The EKG showed normal sinus rhythm without ectopy or ischemia. Another EKG report from this date stated that the Veteran had a borderline intraventricular conduction delay. The record summarized that no remarkable findings were demonstrated by the imaging. The record added that stroke and seizure were ruled out at that time with a concern for possible transient ischemic attack (TIA) and no residual deficits at discharge. The discharge diagnoses were possible TIA, sensory polyneuropathy, hypertension, depression, and restless leg syndrome. Approximately two days later, a July 8, 2010 EKG report from Walter Reed Army Medical Center noted that there was mild concentric left ventricular hypertrophy (LVH) with normal left ventricular wall motion. The Veteran had preserved left ventricle size and systolic function. The estimated left ventricular ejection fraction was 60 to 65 percent. The Veteran was provided with another VA examination in November 2016. The examiner noted that the Veteran had a history of nonspecific intraventricular conduction delay noted on EKG during active duty. She also observed that the Veteran was treated for hypertension during service, and he had been on antihypertensives since his hospitalization for chest pain in August 2006. In her discussion of the post-service medical evidence, the examiner highlighted the July 8, 2010 EKG result of mild LVH with normal ejection fraction. Although the EKG from the November 2016 VA examination was normal, the examiner commented that its tracings were consistent with prior EKG reports of record dating back to 1988. She explained that the Marquette Algorithm does not always call the pattern nonspecific interventricular conduction delay. In light of the examination and her review of the record, the examiner determined that the Veteran had nonspecific interventricular conduction delay and hypertensive cardiovascular disease. The examiner stated that the nonspecific EKG finding was consistent throughout the Veteran's active service. However, it was a borderline or variant finding that was not associated with significant cardiac pathology. Nonspecific interventricular conduction delay was not known to impair functional capacity, and it was not likely to result in future impairment or disability. According to the examiner, no other specific cardiac pathology was identified during active service apart from the Veteran's hypertensive cardiovascular disease. The Board notes that hypertensive heart disease refers to heart problems, including LVH, "that occur because of high blood pressure that is present over a long time." Hypertensive Heart Disease, MedlinePlus (Nov. 7, 2017), https://medlineplus.gov/ency/article/000163.htm; see also Hypertensive Heart Disease, Healthline (Nov. 7, 2017), https://www.healthline.com/health/hypertensive-heart-disease ("[h]ypertensive heart disease refers to heart conditions caused by high blood pressure."). This definition is consistent with the facts in this case as the record reflects that the Veteran was treated for hypertension for several years before there was evidence of hypertensive heart disease. The definition's identification of hypertension as the cause of hypertensive heart disease is also congruent with the November 2016 VA examiner's opinion. She indicated that evidence of the Veteran's hypertension during service was part of the cardiac pathology for his current hypertensive heart disease. Moreover, there is no evidence in the record that suggests otherwise. Based on the above discussion, the Board finds that the weight of the evidence supports finding that the Veteran's hypertensive heart disease was proximately due to, or the result of, his service-connected hypertension. Secondary service connection is therefore warranted. See 38 C.F.R. § 3.310. As the Board is granting entitlement to secondary service connection, it is unnecessary to address any other theory of entitlement advanced. ORDER Entitlement to an initial compensable evaluation for ED is denied. Entitlement to service connection for a heart disorder, diagnosed as hypertensive heart disease, secondary to service-connected hypertension, is granted. ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs