Citation Nr: 1805199	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  13-26 114	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

Entitlement to an initial compensable rating for penile deformity (previously characterized as erectile dysfunction) prior to May 1, 2017 and in excess of 30 percent thereafter.  


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Forde, Associate Counsel 
INTRODUCTION

The Veteran served on active duty in the United States Navy from November 1961 to November 1983, to include service in the Republic of Vietnam.   

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In January 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge.  

In July 2017, the Board remanded for additional development.  In December 2017, the Appeals Management Center (AMC) assigned a 30 percent rating for the Veteran's erectile dysfunction effective May 1, 2017.  The increase was based on recent evidence showing loss of half or more of the penis, as detailed further below.  Given these findings, the Board has recharacterized the service-connected disability on appeal as reflected on the title page.

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

Throughout the appeal, the Veteran's service-connected penile deformity has involved loss of at least half of the penis.


CONCLUSION OF LAW

Throughout the appeal, the criteria for a 30 percent rating, but no higher, for the Veteran's penile deformity are met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. 
§§ 4.1, 4.2, 4.10, 4.31, 4.115b, Diagnostic Code (DC) 7520 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION

Historically, service connection was granted in a May 2011 rating decision; a noncompensable rating was assigned to the Veteran's penile deformity, effective February 12, 2010.  The Veteran disagreed with the initial rating assigned therein and the current appeal ensued.  As noted above, in December 2017, the AMC assigned a 30 percent rating effective May 1, 2017 under Diagnostic Code 7520.  

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where the evidence demonstrates distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  

The Veteran's penile deformity is evaluated under Diagnostic Code 7522 prior to May 1, 2017 and under Diagnostic Code 7520 thereafter.  The rating schedule provides three codes for penile impairment.  Removal of half or more of the penis is rated as 30 percent disabling, or it is rated on voiding dysfunction.  38 C.F.R. 
§ 4.115b, Diagnostic Code 7520.  Removal of the glans of the penis is rated as 20 percent disabling, or it is rated on voiding dysfunction.  38 C.F.R. § 4.115b, Diagnostic Code 7521.  Deformity of the penis with loss of erectile power is rated as 20 percent disabling.  38 C.F.R. § 4.115b, Code 7522.  
It is noted that the Veteran has been granted entitlement to special monthly compensation based on the loss of use of a creative organ.  38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a).

Here, a June 2015 urology record reveals that the Veteran complained of swelling around the glans of his penis.  He was treated for a "reddened nonraised lesion involving the corona to the right side of the midline approximately 1cm area without induration."  The meatus, glans, and testes were otherwise normal.  The Veteran reported foreshortening of the penis.  He was prescribed medication to treat the lesion.  A November 2015 treatment note indicated that the penile lesion resolved.  

On VA examination in September 2017, the Veteran reported that his penis is now one-third of the size it was prior to his prostate cancer surgery, that he lost the ability to achieve an erection, and that the symptoms began in 2007-2008.  Physical examination revealed an abnormal penis, with the examiner noting loss/removal of less than half of penis.  His testes and epididymis were normal.  The examiner noted that penile foreshortening indicates that the penis has retracted into itself and indicates a penile deformity. 

The objective evidence of a penile deformity manifested by penile foreshortening during the September 2017 VA examination supports assignment of a 30 percent rating throughout the appeal period.  In this regard, the Veteran has competently and credibly testified that his penis shrank two-thirds of its previous size following his prostate cancer surgery prior to the appeal period.  See January 2017 Board Hearing Transcript at 7; see also February 2012 and June 2014 written statements.  Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  The Board will afford him the benefit of doubt as to the extent of his foreshortening over the assessment of the VA examiner.  Thus, the Board finds that a 30 percent rating is warranted throughout the appeal for disability equivalent to loss of half or more of the Veteran's penis.  

A rating in excess of 30 percent is not warranted.  The Board emphasizes that the Veteran has been awarded a separate 10 percent rating for his service-connected residuals of prostate cancer with diabetic urinary incontinence (DC 7528-7527), which considers voiding dysfunction.  Thus, to rate his voiding dysfunction in relation to his penile deformity would constitute prohibited pyramiding.  Accordingly, a rating in excess of 30 percent at any point during the course of the appeal is not warranted.  


ORDER


An initial 30 percent rating for the Veteran's penile deformity is granted for the entire appeal period.  



____________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs