Citation Nr: 18158017
Decision Date: 12/14/18	Archive Date: 12/13/18

DOCKET NO. 17-04 663
DATE:	December 14, 2018
ORDER
Entitlement to a compensable rating for erectile dysfunction (ED) is denied.
FINDING OF FACT
The preponderance of the evidence is against a finding that the Veteran has a deformity of the penis. 
CONCLUSION OF LAW
The criteria for entitlement to a compensable disability rating for ED have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.115b, DC 7522 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had multiple periods of active service between June 1964 and June 1993.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) regional office (RO).
Entitlement to a compensable rating for ED
The Veteran has been service connected for residuals of prostate cancer since February 2013.  The residuals were rated as 100 percent disabling until January 2016.  Since March 2013, he has received special monthly compensation for the loss of use of a creative organ.  38 U.S.C. § 1114(k); 38 C.F.R. § 3.350.  
Effective January 2016, the Veteran has been service connected for ED, as secondary to residuals of service-connected prostate cancer.  The disorder has been rated as 0 percent disabling.  The Veteran asserts entitlement to a higher rating.  
Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes (DCs).  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018).  “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter before the Board, the benefit of the doubt will be granted to the claimant.  38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7 (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on the merits, the preponderance of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 
The RO rated the Veteran’s ED under the hyphenated Diagnostic Code (DC) 7599-7522 of 38 C.F.R. § 4.115b.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned.  In this case, DC 7599 is used to evaluate ED, which is not specifically listed in the schedule, but is rated by analogy to the similar disability of loss of erectile power due to penis deformity.  38 C.F.R. § 4.27.  Under DC 7522, a sole rating of 20 percent is authorized.
To receive the 20 percent rating under DC 7522, the evidence must show a loss of erectile power due to a deformity of the penis.  The lay and medical evidence in this case shows a loss of erectile power as a residual of prostate cancer.  However, the evidence does not indicate a deformity of the penis.  As such, the 20 percent rating is not warranted here.  Further, the Board finds that the Veteran’s ED is appropriately compensated under 38 C.F.R. § 3.350.  See 38 C.F.R. § 4.115b, DC 7522, note 1.  
As the preponderance of the evidence is against the claim, the reasonable doubt doctrine does not apply, and the claim must be denied.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7.  

 
G. A. WASIK
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Christopher McEntee, Counsel