Citation Nr: 18142982 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 15-30 464 DATE: October 17, 2018 ORDER Entitlement to a compensable rating for erectile dysfunction is denied. REMANDED Entitlement to an initial compensable rating for bilateral lower extremity edema and claudication is remanded. Entitlement to a rating in excess of 60 percent for radical perineal prostatectomy due to adenocarcinoma of the prostate is remanded. FINDING OF FACT The Veteran’s service-connected erectile dysfunction is productive of loss of erectile power, but not deformity of the penis. CONCLUSION OF LAW The criteria for a compensable disability rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115b, Diagnostic Code 7599-7522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1967 to July 1971. The Veteran initially requested a Board hearing, but withdrew his hearing request in September 2016. Entitlement to a compensable rating for erectile dysfunction Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s erectile dysfunction is currently evaluated as noncompensable, effective August 10, 1998, and rated by analogy under Diagnostic Code (DC) 7599-7522 for penis, deformity, with loss of erectile power. DC 7522 allows for a 20 percent rating when the evidence shows both loss of erectile power and a physical deformity of the penis. Additionally, a note to DC 7522 indicates that entitlement to special monthly compensation (SMC) under 38 C.F.R. § 3.350 should also be considered; however, the Board notes that the Veteran is already in receipt of a separate award of SMC due to loss of use of a creative organ as a result of his erectile dysfunction from August 10, 1998. Turning to the evidence of record, the Veteran was provided a VA male reproductive system examination in May 2012. The examiner noted a diagnosis of erectile dysfunction as a result of radial perineal prostatectomy. The examiner noted a history of voiding dysfunction, but no urinary tract or kidney infection. There was no retrograde ejaculation. Physical examination of the penis was normal, and the Veteran declined examination of the testes. The Veteran was provided another VA male reproductive system examination in October 2013. The examiner reviewed the Veteran’s medical history and noted a diagnosis of erectile dysfunction, which started after a 1998 surgical procedure to remove the prostate after a diagnosis of adenocarcinoma of the prostrate. The Veteran reported trying injections, the pump, and Viagra without success. The examiner noted a history of two separate hospitalizations for urinary tract infection. The examiner also noted retrograde ejaculation secondary to prostatectomy. A physical examination of the penis was normal. Physical examination of the testes revealed the testes were two-thirds of the normal size. Both the May 2012 and October 2013 examinations noted voiding dysfunction causing urine leakage. However, the Board notes that the Veteran is in receipt of a separate rating for residuals of prostate removal surgery under Diagnostic Code 7528, which contemplates the Veteran’s voiding dysfunction. VA medical records from January 2015 note that the Veteran reported continued erectile dysfunction. He indicated that he tried various modalities of treatment, including oral medication and injections. The Veteran indicated he did not want to undergo any further surgical treatment. The Veteran denied decreased libido. No physical deformity of the penis was noted. The May 2012 and October 2013 VA examinations of the penis did not show a physical deformity. The October 2013 examiner did note reduced size of the testes. The Board finds that a reduction in size is not a deformity as contemplated by the regulation. As noted above, while he has a zero percent rating, the Veteran is in receipt of special monthly compensation for loss of use of a creative organ, and he is in receipt of a monthly monetary benefit for this disability (erectile dysfunction). Therefore, he is compensated for this disability. In this case, the Board finds that the most probative evidence at hand weighs against the Veteran having a penile deformity. Therefore, a 20 percent rating is not warranted. The Board has considered all potentially applicable provisions of the rating schedule, whether or not they have been raised by the Veteran or the record. However, the Board has found no DC that provides a basis upon which to assign a compensable disability rating for the Veteran’s erectile dysfunction. Therefore, the preponderance of the evidence is against the Veteran’s claim of entitlement to a compensable disability rating for erectile dysfunction, there is no reasonable doubt to be resolved, and the claim is denied. See 38 U.S.C. § 5107 (a); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for bilateral lower extremity edema and claudication is remanded. 2. Entitlement to a rating in excess of 60 percent for radical perineal prostatectomy due to adenocarcinoma of the prostate is remanded. The Veteran contends that he is entitled to increased ratings for his service-connected disability of the bilateral lower extremities and residuals of prostatectomy (prostate removal surgery). Due to the Veteran’s assertion that his conditions have worsened since his last examinations, the Board finds a remand necessary before adjudication. The Veteran was last provided with VA medical examinations related to his disability of the bilateral lower extremities, and residuals of prostatectomy, in October 2013. Since those VA examinations, the Veteran’s statements and the medical record show a worsening of the Veteran’s conditions. Specifically, in a December 2014 letter, the Veteran’s VA primary care physician indicated that the Veteran’s medical conditions have deteriorated over the past few years, and that the Veteran is unable to perform sustained walking. In a statement received by the VA in October 2015, the Veteran indicated that he was previously using a cane to walk, but is now using a walker to get around. In a November 2015 statement, the Veteran indicated that he needs to change his urine pads five to eight times per day, and that he is unable to walk long distances due to his lower extremity symptoms. The Veteran is competent to report a worsening of symptoms. Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, to warrant a new VA examination, a claimant need only submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation). Accordingly, remand is necessary to obtain current examination findings. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral lower extremity edema and claudication. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to bilateral lower extremity edema and claudication alone and discuss the effect of the Veteran’s bilateral lower extremity edema and claudication on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residuals of radical perineal prostatectomy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to radical perineal prostatectomy alone and discuss the effect of the Veteran’s radical perineal prostatectomy on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Casey, Associate Counsel