Citation Nr: 18140274 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-03 999 DATE: October 2, 2018 ORDER Entitlement to a compensable evaluation for erectile dysfunction is denied. REMANDED Entitlement to service connection for a respiratory disability, to include bronchitis, emphysema, and chronic obstructive pulmonary disorder (COPD) is remanded. Entitlement to service connection for a kidney disability is remanded. Entitlement to a compensable evaluation for residuals of prostate cancer is remanded. FINDING OF FACT The Veteran does not have a penile deformity. CONCLUSION OF LAW The criteria for entitlement to a compensable evaluation for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115b, Diagnostic Code (Code) 7522 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 and February 1971, with service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA). Although the Agency of Original Jurisdiction (AOJ) adjudicated three separate issues of entitlement to service connection for bronchitis, emphysema and COPD, all of which were appealed to the Board, in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the issues into one issue encompassing any respiratory disorder. Entitlement to a compensable evaluation for erectile dysfunction. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App, 119 (1999). The Veteran’s erectile dysfunction has been rated as noncompensable during the entire appeal period. He has also been awarded special monthly compensation (SMC) for loss of use of a creative organ pursuant to 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) during the entire appeal period. Beyond being compensated by the award of SMC, erectile dysfunction may be rated under Code 7522, which provides for a 20 percent rating for deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b. In every instance where the Rating Schedule does not provide a zero percent rating for a Code, a zero percent rating must be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. The Veteran has not stated the basis for which he is entitled to an increased rating for his erectile dysfunction. In January 2016, he reported that his erectile dysfunction was worse than before. See January 2016 substantive appeal. During an April 2016 VA examination, the Veteran’s penis, testicles, and epididymis were not examined at the Veteran’s request, but he did not report any deformities relating to such anatomy. See April 2016 VA examination. After review of the record, the evidence reflects that the Veteran does not have a penile deformity. The April 2016 VA examination is given significant probative weight as it reflects the Veteran’s lay statements regarding any penile deformity. The Board notes that the Veteran has never said he had a penile deformity. Because the evidence does not reflect that the Veteran has a penile deformity, a compensable rating for erectile dysfunction is not warranted. The Board notes that the Veteran’s voiding dysfunction is contemplated and being compensated pursuant to his service-connected residuals of prostate cancer, although he seems to associate it with his erectile dysfunction. See January 20126 substantive appeal; 38 C.F.R. § 4.115b, Code 7528. As a result, there are no other diagnostic criteria under which the Veteran’s erectile dysfunction would be more appropriately evaluated. He has been in receipt of SMC specifically for the loss of use of a creative organ. Thus, to the extent that he asserts entitlement to compensation for impaired erection, he is in fact receiving monthly compensation for such impairment, and additional compensation is not warranted unless there is evidence to show deformity of the penis with loss of erectile power, as stated above. Accordingly, the matter must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a respiratory disability. Entitlement to service connection for a kidney disability. Medical treatment records provided by the Veteran reflect a diagnosis of a reoccurrence of left renal carcinoma and COPD shortly before the appeal period. See June 2010 and June 2011 private treatment records. The Veteran attributes his illnesses to exposure to herbicide agents in Vietnam. See May 2013 notice of disagreement (NOD). Thus, the Board finds that the low threshold of McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), has been met, and remand for VA examinations is necessary. 2. Entitlement to a compensable evaluation for residuals of prostate cancer. The VA examinations of record contradict each other as to whether the Veteran has active prostate cancer or prostate cancer in remission. See January 2013 and April 2016 VA examinations. Additionally, neither examination discusses whether the Veteran has renal dysfunction (rather than a kidney infection), which is part of the criteria used to assign a rating for residuals of prostate cancer. See 38 C.F.R. § 4.115b, Code 7528. As a result, remand for a new VA examination is necessary. The matters are REMANDED for the following action: 1. The AOJ should obtain, if possible, records of all private evaluations and treatment the Veteran has received for his disabilities. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. If any private records identified are not received pursuant to the AOJ’s request, the Veteran should be so notified and advised that it is ultimately his responsibility to ensure that any available private records are received. 2. After the above development is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any respiratory disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all respiratory disabilities present during the appeal period (from January 2012). The June 2011 diagnosis of COPD must be discussed. (b.) For each respiratory disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. Exposure to herbicide agents in Vietnam must be discussed. An opinion solely relying on the absence of a presumed relation between the disability and herbicide agents will not be deemed adequate. 3. After the development in the first instruction is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any kidney disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all kidney disabilities present during the appeal period (from January 2012). The June 2010 diagnosis of reoccurrence of left renal carcinoma must be discussed. (b.) For each kidney disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. Exposure to herbicide agents in Vietnam must be discussed. An opinion solely relying on the absence of a presumed relation between the disability and herbicide agents will not be deemed adequate. 4. After the development in the first instruction is completed, the AOJ should arrange for an examination of the Veteran to assess the current severity of his service-connected residuals of prostate cancer. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran’s disability. The examiner is also requested to respond to the following: (a.) Has the Veteran had active prostate cancer at any time during the appeal period (from January 2012)? Please explain why. (b.) Has the Veteran had renal dysfunction as a residual of his prostate cancer at any time during the appeal period (from January 2012)? Please explain why. If the Veteran has had renal dysfunction, the examiner must opine on whether such dysfunction manifests in the applicable criteria under 38 C.F.R. § 4.115a, for renal dysfunction. CONTINUED ON NEXT PAGE 5. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel