Citation Nr: 18159426 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 17-03 394 DATE: December 19, 2018 REMANDED Entitlement to a compensable disability rating for erectile dysfunction is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1965 to October 1968, to include service in the Republic of Vietnam from May 1967 to May 1968. 1. Increased Rating – Erectile Dysfunction Upon review, the Board finds that remand is required for a VA opinion. By way of background, a December 2005 rating decision granted entitlement to service connection for erectile dysfunction as secondary to service-connected prostate cancer. A noncompensable (0 percent) disability rating was assigned under Diagnostic Code 7522 (this was updated in the June 2015 rating decision on appeal to Diagnostic Code 7599-7522). Under Diagnostic Code 7522, the only compensable disability rating available is a 20 percent disability rating, which is assigned for “Penis, deformity, with loss of erectile power.” The Veteran was afforded a VA examination in April 2015 and a Male Reproductive System Conditions Disability Benefits Questionnaire (DBQ) was completed, which noted a diagnosis of erectile dysfunction and noted that the Veteran was “[u]nable to get an erection.” The Veteran therefore appears to have “loss of erectile power” as contemplated by Diagnostic Code 7522. The remaining requirement for a 20 percent disability rating is penis deformity. The April 2015 VA DBQ noted upon physical examination that the Veteran’s penis was normal. The United States Court of Appeals for Veterans Claims (Court), however, addressed Diagnostic Code 7522 in Williams v. Wilkie, 30 Vet. App. 134 (2018) and stated that “[t]he Court…holds that ‘deformity’ under [Diagnostic Code] 7522 means a distortion of the penis, either internal or external.” The Board notes that the Veteran received 41 treatments of radiation for his prostate cancer. See August 2007 VA Genitourinary Examination Report. The April 2015 VA DBQ stated that the etiology of the Veteran’s erectile dysfunction was “[p]rostate cancer and treatment” and the December 2005 rating decision that granted entitlement to service connection for erectile dysfunction stated that “[t]he evidence show that this condition is a residual of your prostate cancer radiation treatment.” The Veteran’s representative submitted a medical journal article in January 2017. A portion of the article stated that “[f]ew studies on the mechanism of erectile dysfunction following radiotherapy have been reported. The current theory is that radiation affects the penile bulb and neurovascular bundle” and that “[r]adiation therapy causes nerve injuries.” In Williams, the Veteran received a different treatment, a radical prostatectomy, for his prostate cancer than the Veteran in the current case. The Court, after defining the term “deformity” as outlined above, stated that “the Board failed to address whether severed nerves caused by a radical prostatectomy meet the definition of ‘penile deformity.’” In this case, the submitted medical journal article suggests radiation therapy causes nerve injuries or affects the penile bulb and neurovascular bundle, which generally appear similar to the “severed nerves” discussed by the Court in Williams. In light of Williams, the evidence of record raises the medical question, that the Board is not competent to address, of whether the Veteran’s erectile dysfunction that has been noted to have been caused by prostate cancer radiation treatment has been manifested by internal penis deformity (i.e., an internal distortion of the penis). See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The April 2015 VA DBQ, while addressing the issue of external penis deformity by way of noting upon physical examination that the Veteran’s penis was normal, did not clearly address the issue of internal penis deformity. As such, remand is required for a VA opinion that specifically addresses this issue pursuant to Williams. Also, while on remand, outstanding VA treatment records must be obtained (the most recent VA treatment record of record are from May 2017). 2. Entitlement to a TDIU The Veteran’s increased rating claim for erectile dysfunction was filed in February 2015. During the appeal period, the Veteran submitted in February 2016 a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). The Veteran reported that he last worked full time and that that his disability affected full time employment in December 2013. He listed as a service-connected disability preventing him from securing or following any substantially gainful occupation in part because of erectile dysfunction (and also listed heart disease and prostate cancer). The Court stated in Rice v. Shinseki, 22 Vet. App. 447 (2009) that “we hold that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities…as part of a claim for increased compensation.” In this case, the Veteran expressly raised the issue of entitlement to a TDIU by his submission of the VA Form 21-8940 during the appeal period. The Agency of Original Jurisdiction (AOJ) has not adjudicated a TDIU claim, no notice regarding the TDIU claim has been provided to the Veteran and any development deemed appropriate for this claim has not been conducted. Therefore, the issue must be remanded so that proper notice can be provided and any necessary development undertaken. The matter is REMANDED for the following action: 1. Obtain outstanding VA treatment records from May 2017. 2. Obtain a VA opinion regarding the Veteran’s erectile dysfunction claim. If the medical professional determines that additional examination of the Veteran is necessary to provide an adequate opinion, such examination must be scheduled. The medical professional must provide an opinion addressing the following: Whether the Veteran’s erectile dysfunction that has been noted to have been caused by prostate cancer radiation treatment has been manifested by internal penis deformity (i.e., an internal distortion of the penis). See Williams v. Wilkie, 30 Vet. App. 134 (2018) (stating “that ‘deformity’ under [Diagnostic Code] 7522 means a distortion of the penis, either internal or external”). While review of the entire claims folder is required, attention is invited to medical journal article submitted by the Veteran in January 2017 and published in a journal in August 2012. A portion of the article stated that “[f]ew studies on the mechanism of erectile dysfunction following radiotherapy have been reported. The current theory is that radiation affects the penile bulb and neurovascular bundle” and that “[r]adiation therapy causes nerve injuries.” 3. With respect to issue of entitlement to a TDIU, provide the Veteran with the required information under VA’s duty to notify and assist. Specifically, the Veteran must be notified of how to substantiate a claim for entitlement to a TDIU. After such action, conduct any further development of the TDIU issue deemed necessary J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hoopengardner, Counsel