Citation Nr: 18140879 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-19 288A DATE: October 9, 2018 ORDER Entitlement to a compensable rating for erectile dysfunction is denied. FINDING OF FACT During the period on appeal, penile deformity has not been shown. CONCLUSION OF LAW The criteria for a compensable rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 5107 (b) (2012); 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 The Veteran served on active duty from June 1979 to March 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. Entitlement to a compensable rating for erectile dysfunction 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. Separate diagnostic codes identify the various disabilities. The Veteran seeks a compensable rating for his service-connected erectile dysfunction. The Veteran does not assert that he has any penile deformity. Instead he argues that he has suffered from this condition for years, and should be awarded a higher rating due to his suffering. 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. 38 C.F.R. § 4.115(b), Diagnostic Code 7522. In an April 2015 VA examination, the examiner stated that the Veteran had erectile dysfunction as a side effect from medications. The Veteran was not able to achieve an erection sufficient for penetration and ejaculation without medication. The Veteran used medication for treatment of his erectile dysfunction; however, the Veteran was not able to achieve an erection sufficient for penetration and ejaculation with medication. There was no retrograde ejaculation. The examiner stated that the Veteran’s penis was not examined per the Veteran’s request. The Veteran reported normal anatomy with no penile deformity or abnormality. The Veteran’s testes were also not examined per the Veteran’s request. In a June 2015 notice of disagreement, the Veteran said that he had been suffering from erectile dysfunction for years. He said his quality of life was terrible and he suffered from depression and anxiety attacks, and that all of the medication he was taking caused this “horrible issue.” He said he could not achieve an erection and therefore there was no penetration. He said he was unable to “keep a girlfriend.” Overall, he said this was affecting his life in a negative way. In the May 2016 VA Form 9, the Veteran said that he did not file a claim for deformity, but he had a legitimate claim for erectile dysfunction due to all of the medication and depression. He requested his rating be increased due to this terrible condition. In a December 2017 disability benefits questionnaire (DBQ), it was noted that the Veteran had erectile dysfunction. The Veteran was not able to achieve an erection sufficient for penetration and ejaculation without medication. It was noted that the Veteran used medication for treatment of his erectile dysfunction, but he was not able to achieve an erection sufficient for penetration and ejaculation with medication. There was no retrograde ejaculation. The Veteran’s penis and testes were not examined per the Veteran’s request. In the May 2018 Appellate Brief, the Veteran’s representative stated that the Veteran felt he was entitled to an increased rating for erectile dysfunction due to the fact that he had suffered from this condition for years and that it caused him great distress. Upon review, the Board notes that the Veteran does not warrant a compensable rating because, although there is evidence of loss of erectile power, there is no evidence of deformity. The Board has considered the Veteran’s statements that his erectile dysfunction merits a compensable rating because of its effect on his personal life, however as discussed above, in order to warrant a compensable rating under the relevant diagnostic code, the evidence must show a deformity with loss of erectile power. This has not been demonstrated or alleged. Extraschedular Consideration Based on the Veteran’s statements, the Board has considered whether this case should be referred for an extraschedular evaluation. 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. The Veteran contends that his erectile dysfunction results in depression, however the Veteran’s depression has already been service-connected. The Veteran also submitted an article from the internet and highlighted portions which indicated that erectile dysfunction may cause stress and anxiety, however anxiety and difficulty adapting to stressful circumstances are symptoms contemplated in the 70 percent rating assigned to the Veteran’s depression. In this case, there is no evidence that the Veteran’s erectile dysfunction results in a symptom not contemplated by the ratings criteria. Thus, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. M. Donohue Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel