Citation Nr: 1803660	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  16-28 764	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to a compensable rating for erectile dysfunction.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. E. Griffith, Associate Counsel



INTRODUCTION

The Veteran served on active duty from July 1964 to December 1969.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

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) (2012).


FINDING OF FACT

The Veteran's erectile dysfunction is manifested by loss of erectile power, but not by deformity of the penis.


CONCLUSION OF LAW

The criteria for an initial compensable rating for erectile dysfunction have not been met.  38 U.S.C. §§ 4.1, 4.7, 4.10, 4.71a, Diagnostic Code 7522 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Procedural duties
		
Neither the Veteran nor his representative has raised any issues with respect to 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).

Rating analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017).

If two disability evaluations are potentially applicable, 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.  All reasonable doubt as to the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14.

In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered.  Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999).  Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal.  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).

The Veteran has been assigned an initial noncompensable rating for erectile dysfunction under Diagnostic Code 7522.  See 38 C.F.R. § 4.115b, DC 7522.  Twenty percent is the sole and maximum schedular rating allowed under Diagnostic Code 7522, which requires evidence of deformity and loss of erectile power.  Id.  

The Veteran is also receiving special monthly compensation for erectile dysfunction based on loss of use of a creative organ.  38 C.F.R. § 3.350(a) (2017).

The Veteran is competent to report symptoms observable by his senses.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).

The Veteran contends that his erectile dysfunction is worse than the noncompensable rating assigned by the RO.  For the reasons that follow, the Board finds that a compensable rating is not warranted.

Medical treatment records reflect that the Veteran has had problems with erectile dysfunction since approximately a month after undergoing radiation treatment for prostate cancer.  A June 2009 note reflects that the Veteran previously took Viagra, but it was no longer effective.  Several years later, in September 2012, the Veteran's physician notes that Caverject even at full dose is no longer working for the Veteran's erectile dysfunction.  The physician noted that he will let the Veteran try a triple-mix medication, after trying a double-mix medication.  In October 2015, the Veteran reported marginal success with erectile dysfunction medications, and stated he is happy for now with his erectile function.

The Veteran underwent a VA examination in February 2015.  He reported that he began to have problems with erectile dysfunction a month following radiation for his service-connected prostate cancer.  The Veteran reported used a penile injection that was successful approximately 10 percent of the time.  Notably, the Veteran denied genital injuries or deformity.  The examiner opined that the Veteran is not able to achieve erection sufficient for penetration and ejaculation without medication, but is able to achieve it with medication.  

Although the evidence shows the Veteran suffers from erectile dysfunction, with limited success with medication, there is no evidence showing that the Veteran suffers from a penis deformity.  Accordingly, as the preponderance of the evidence is against the claim, it must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.


ORDER

An initial compensable rating for erectile dysfunction is denied.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs