Citation Nr: 1808599 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 10-08 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial compensable rating for erectile dysfunction. 2. Entitlement to an initial rating in excess of 50 percent from September 25, 2012, and 70 percent from August 11, 2015, for posttraumatic stress disorder (PTSD). 3. Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: African American PTSD Association ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to January 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from January 2008 and October 2009 rating decisions of Department of Veterans Affairs (VA) Regional Offices (ROs). In the January 2008 rating decision, the RO granted service connection for PTSD, assigning an initial 30 percent disability rating. In the October 2009 rating decision, the RO granted service connection for erectile dysfunction, assigning an initial noncompensable disability rating. In addition, in an October 2012 rating decision the RO awarded the Veteran an increased rating of 50 percent for his service-connected PTSD, effective from September 25, 2012. The Veteran testified before a Veterans Law Judge at a videoconference hearing in September 2013. A transcript of that hearing has been associated with the Veteran's claims file. This Veterans Law Judge is no longer at the Board and, while the Veteran was offered the opportunity to testify at a new hearing, he responded in January 2018 declining this opportunity. Therefore, VA's duty to assist with respect to providing a hearing has been met. 38 C.F.R. § 20.700 (2017). These issues were previously remanded by the Board for further development in February 2014. With the exception of the issue of entitlement to an increased disability rating for PTSD, as will be discussed further in the REMAND section, such development was undertaken, and the case is returned to the Board for further consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Following development instructed by the Board remand, a February 2017 rating decision increased the disability rating for PTSD to 70 percent, effective August 11, 2015. However, since this grant did not constitute a full grant of the benefits sought on appeal, this claim remain for appellate review. The issues of entitlement to an initial rating in excess of 50 percent from September 25, 2012, and 70 percent from August 11, 2015, for PTSD and entitlement to TDIU is addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's erectile dysfunction does not involve any deformity of the penis. CONCLUSION OF LAW The criteria for a compensable rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.115b, Diagnostic Code 7522 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran offered testimony before the undersigned Veterans Law Judge at a Board hearing in October 2016. II. The Merits of the Claim Generally, disability ratings are assigned under a schedule for rating disabilities and are based on a comparison of the veteran's symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but findings sufficient to identify the disease and the resulting disability, and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern in a claim for increased rating is the present level of disability. Although the overall history of the veteran's disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability following an initial award of service connection for that disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. In all claims for an increased disability rating, VA has a duty to consider the possibility of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, the Board will analyze the evidence of record against the criteria set forth above. Before doing so, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, placing an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record, but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not always accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has been awarded service connection for erectile dysfunction, which disability has been evaluated as noncompensably disabling under 38 C.F.R. § 4.115b, Diagnostic Code 7255 which provides a single rating of 20 percent for penis deformity with loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2017). The Board notes that in every instance where the schedule does not provide a zero percent rating evaluation for a diagnostic code, a noncompensable rating will be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31 (2017). Here, the evidence does not suggest that the Veteran has any deformity of the penis as part of his erectile dysfunction. Specifically, the Veteran underwent VA examinations in June 2009 and July 2010, and on both occasions the examiners specifically noted that no deformity of the penis was evident. He underwent other VA examinations in November 2014 and December 2015 for another disorder; neither examination report suggested the presence of deformity of the penis. The Veteran himself does not contend that his penis is deformed. Consequently, the VA examinations of record either affirmatively note that the Veteran's penis is not deformed, or do not record any such findings or even complaints. Without some evidence of penis deformity, a compensable rating may not be assigned for the Veteran's symptoms of erectile dysfunction alone. See 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2017) (requiring penis deformity with loss of erectile power). Here, the criteria of Diagnostic Code 7522 specifically call for a 20 percent rating only where loss of erectile power and deformity of the penis are both present. Where, as here, multiple requirements are cited for a specified rating, and these are joined with the conjunctive "and", the Board concludes that all such requirements must be met in order for the specified rating to be granted. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (indicating that use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); compare and contrast with Johnson v. Brown, 7 Vet. App. 95 (1994) (holding that only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). Dorland's Illustrated Medical Dictionary defines deformity as "distortion of any part or general disfigurement of the body; malformation." Dorland's Illustrated Medical Dictionary, 30th Ed. 481 (2003). The definition makes no mention of the function of the part in question, but only with its appearance. Furthermore, interpreting "deformity" as used at Diagnostic Code 7522 to include loss of function would have the absurd result of having a diagnostic code that allowed for a rating for loss of function with loss of erectile power. In short, such a definition would render part of the Diagnostic Code superfluous. See Merriam-Webster's Collegiate Dictionary 507 (11th ed. 2003)(defining function as the action for which a person or thing is specially fitted or used or for which a thing exists: purpose) with 973 (defining power as ability to act of produce an effect). The Court has recognized the affirmative duty to avoid a literal interpretation of regulatory language that would produce "an illogical and absurd result." Zang v. Brown, 8 Vet. App. 246, 252-53 (1995); Splane v. West, 216 F.3d 1058, 1068-69 (Fed. Cir. 2000) (explaining that canons of construction require giving effect to the clear language of a statute and avoid rendering any portions meaningless or superfluous.). Accordingly, because the evidence fails to demonstrate that the Veteran has penile deformity in addition to his erectile dysfunction, a compensable rating is not warranted. Id. The Board notes that, as a result of his erectile dysfunction, the Veteran is receiving special monthly compensation for loss of use of a creative organ. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER An initial compensable rating for erectile dysfunction is denied. REMAND Pursuant to the February 2014 Board remand, the Veteran was afforded a VA examination to assess the current severity of his service-connected PTSD. The Veteran contends in a January 2018 statement that his PTSD has worsened and he is continuing to receive treatment. The Board notes that the Veteran was afforded a VA examination in January 2016, approximately two years ago, for his PTSD. In light of the assertions that his disability is worsening, the Veteran should be afforded VA examination to determine the current severity of his service-connected PTSD. In addition, with respect to the Veteran's claim for a TDIU, the Board finds that this claim is inextricably intertwined with his pending claim for an increased disability rating. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify all sources of treatment, VA and private, for his psychiatric disorder. With any necessary authorization from the Veteran, obtain records for the Veteran from any such source identified. 2. Thereafter, schedule the Veteran for an appropriate examination for the purpose of determining the nature and severity of his PTSD. The Veteran's electronic claims folder must be made accessible to the examiner in connection with the examination for review. After examining the Veteran, the medical examiner should report all signs and symptoms necessary for rating the Veteran's PTSD under the applicable rating criteria. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The Veteran's complaints should be recorded in full. A rationale for any opinion expressed must be provided. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. After completion of the above and any additional development deemed necessary, the issues remaining on appeal should be readjudicated. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs