Citation Nr: 1801232 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 16-13 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial compensable evaluation for erectile dysfunction. ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel INTRODUCTION The Veteran had active service from July 1972 to December 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In a July 2013 rating decision, the Veteran was granted Special Monthly Consideration (SMC) under 38 U.S.C. § 1114 (k) (2014). Accordingly, this decision will not address SMC. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2014). FINDING OF FACT During the period on appeal, penile deformity has not been shown. CONCLUSION OF LAW The criteria for an initial compensable disability rating for erectile dysfunction have not all been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.115b, Diagnostic Code 7522 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2014) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of a December 2012 letter to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. VA provided a relevant and adequate examination in June 2013. The examiner reviewed the accurate history, considered lay statements, and provided clinical findings and diagnoses. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Hence, no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Where evidence indicates that the degree of disability increased or decreased during appeal period following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Erectile Dysfunction The Veteran is seeking an initial compensable rating for his service-connected erectile dysfunction. The Veteran's service-connected erectile dysfunction is currently rated as noncompensable. In order to warrant a compensable rating, the evidence must show deformity of the penis with loss of erectile power (20 percent). 38 C.F.R. § 4.115(b), DC 7522 (2017). The Board observes that the Veteran's treatment records, as well as the VA examination report from June 2013, indicate that the Veteran has erectile dysfunction due to necessary blood pressure medication. Indeed, the report specifically indicates that even with medication, the Veteran is only able to achieve the desired result "about 25 percent of the time." However, the Board finds that there is essentially no evidence of any testicular or penile deformities. Penile deformities are not endorsed on the Veteran's VA examination. Moreover, neither the Veteran's statement in support of his claim, nor the statement from his wife, indicates the presence of any testicular or penile deformities. Absent evidence of penile deformity, even though there is erectile dysfunction, a compensable rating is not warranted under DC 7522. 38 C.F.R. § 4.31 (2017). The Board has also considered the Veteran's statements that his erectile dysfunction merits a compensable rating because of its effect on his personal life and marriage. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his service-connected disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's erectile dysfunction, epididymitis, lumbar spine and shoulder disabilities, and radiculopathy have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. The Board notes the Veteran's statement implying that the July 2013 examination may not have been adequate because it incorrectly states that he declined a genital examination. Whether or not the examiner may have failed to identify a penile deformity due to the lack of a genital examination, the Veteran's statements do not point to the presence of a penile deformity. Rather, they center around the Veteran's erectile dysfunction, without mention of penile deformities. As such, the adequacy of the Veteran's examination is not affected. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to his erectile dysfunction, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic code. See Mittleider v. West, 11 Vet. App. 181 (1998). In making this conclusion, the Board notes the Veteran's contentions that his erectile dysfunction has affected his psychological well-being as well as his marriage. In addition to the absence of penile deformity, the Veteran has not pointed to any tangible effect of his condition on his ability to work. As such, these factors do not merit ratings in excess of those already granted for the periods on appeal. As a final matter, although the Board has found that a compensable rating is not warranted for this disability, it should be pointed out that he does receive special monthly compensation under 38 U.S.C. § 1114 (k) (2014). As such, he is receiving some compensation for this disability. ORDER Entitlement to a compensable rating for erectile dysfunction is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs