Citation Nr: 18152831 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-55 530 DATE: November 27, 2018 ORDER Entitlement to a rating greater than 10 percent for tinnitus is denied. Entitlement to a compensable rating for erectile dysfunction (ED) is granted. FINDINGS OF FACT 1. The Veteran has the maximum allowable schedular rating for tinnitus under the applicable rating criteria. 2. The Veteran’s ED has been manifested by loss of erectile power with deformity of the penis. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 10 percent for tinnitus have not been met, and referral for extraschedular consideration is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.27, 4.87, Diagnostic Code 6260. 2. The criteria for a 20 percent rating, but no higher, for ED have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.115b, Diagnostic Code 7599-7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to December 1969. 1. Entitlement to a rating greater than 10 percent for tinnitus The Veteran has filed a claim for an increased rating greater than 10 percent for his service-connected tinnitus, which is rated under Diagnostic Code 6260. Under this code, only a single 10 percent rating is warranted for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. Id. Note (2). This is the maximum schedular rating assignable for tinnitus and an increased rating under the schedular criteria is therefore unattainable. Further, the Board notes in the Veteran’s March 2016 notice of disagreement, the Veteran wrote that he sought a 10 percent rating for tinnitus, which he is in receipt and that a 10 percent rating for tinnitus was “okay.” As such, there is no actual disagreement by the Veteran as to the 10 percent assigned and he is in receipt of the rating for which he seeks. As the maximum schedular rating for tinnitus under Diagnostic Code 6260 has already been assigned, a higher schedular rating is not available, and the Veteran's claim for a disability rating in excess of 10 percent for tinnitus must be denied on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Entitlement to a compensable rating for erectile dysfunction (ED) Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. By way of background, the Veteran was service-connected for prostate cancer in a January 2013 rating decision. In April 2015, the Veteran was granted service connection for erectile dysfunction as secondary to prostate cancer with an evaluation of 0 percent and the Veteran was also awarded special monthly compensation (SMC) based on loss of a creative organ from April 7, 2015. In connection with his current claim, the Veteran contends that an increased rating is warranted for his erectile dysfunction. The Board notes that there is no specific diagnostic criterion for ED. See generally 38 C.F.R. § 4.115b, Ratings of the Genitourinary System, DCs 7500-42. When a veteran is diagnosed with an unlisted disease, the condition must be rated under an analogous DC. 38 C.F.R. §§ 4.20 and 4.27. Here, the Agency of Original Jurisdiction (AOJ) has rated the Veteran’s ED under DC “7599-7522,” which represents an unlisted genitourinary disability evaluated by analogy to penis deformity with loss of erectile power. See 38 C.F.R. § 4.115b, DC 7522. See generally 38 C.F.R. §§ 4.20, 4.27 (providing that unlisted disabilities requiring rating by analogy will be coded as the first two numbers of the most closely related body part and “99”). Pursuant to DC 7522, a 20 percent rating is warranted for deformity of the penis with the loss of erectile power. This is the only schedular rating provided under such DC. The Board notes that, in every instance where the schedule does not provide a zero percent rating for a DC, a zero percent evaluation shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. The Veteran’s SMC award is based upon loss of use of a creative organ under 38 U.S.C. § 1114(k). This award contemplates impotence, and may be awarded even if a veteran can achieve erection and penetration with the use of medication. See VBA Manual M21-1, III.iv.4.I.2.b (Entitlement to SMC Associated With ED). A separate rating under DC 7522 may only be awarded for deformity of the penis with loss of erectile power. See VBA manual M21-1, III.iv.4.I.2.a (Deformity of the Penis with Loss of Erectile Power). In fact, VBA has indicated that a compensable rating under DC 7522 is not warranted in the absence of deformity, and instructs that such deformity be “evident.” Id. As such, the evidence must demonstrate “deformity of the penis” to warrant an additional schedular rating under DC 7522. (Continued on the next page)   On review of the medical evidence, the Board finds that the Veteran’s ED is manifested by penile deformity in addition to loss of erectile power. In this regard, in a June 2016 private treatment record, the Veteran’s urologist indicated that the Veteran’s prostate cancer treatment, which included radiation, caused penile shortening. See June 2016 Urologic Surgeons of Arizona treatment records. While the Veteran’s urologist did not specifically state that loss of length of the penis constituted a deformity, the Board will resolve reasonable doubt in the Veteran’s favor and find that the evidence is at least in equipoise as to whether his ED is manifested by penile deformity. Notably, a 20 percent rating is the maximum rating available under DC 7522, and no other schedular criteria are applicable to ED. As such, the Veteran’s claim for an increased rating for his service-connected ED is granted. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.D.