Citation Nr: 1828126	
Decision Date: 05/07/18    Archive Date: 05/18/18

DOCKET NO.  14-41 798	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania



THE ISSUE

Entitlement to an increased rating for erectile dysfunction, currently rated as noncompensable. 



REPRESENTATION

Veteran represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

LM Stallings, Associate Counsel



INTRODUCTION

The Veteran served on active duty from October 1973 to October 1976.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  


FINDING OF FACT

The Veteran's erectile dysfunction has been manifested by loss of erectile power without deformity.


CONCLUSION OF LAW

The criteria for an increased disability rating for erectile dysfunction, currently rated noncompensable, have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.115b, Diagnostic Code (DC) 7522 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist 

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).


Legal Standards and Analysis 

The Veteran has argued that he is entitled to a higher rating for his service connected 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 resulting from disability. Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  The Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994).  However, the Board has been advised to consider factors outside the specific rating criteria in determining the level of occupational and social impairment.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R.       § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.

To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  When the Veteran is requesting an increased rating for a service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations.  Powell v. West, 13 Vet. App. 31 (1999).  Nevertheless, the Board acknowledges that the Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis below is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods.

In this case, a September 2010 rating decision granted the Veteran service connection for erectile dysfunction.  The Veteran filed a claim for an increased rating for erectile dysfunction in March 2012. 

The Veteran's erectile dysfunction has been assigned a 0 percent (noncompensable) rating as a residual of left testicle removal.  38 C.F.R. § 4.115b.  To warrant a compensable 20 percent rating for erectile dysfunction, there must be deformity of the penis with loss of erectile power.  38 C.F.R. § 4.115b, DC 7522. 

In this case, the record does not show that the Veteran has a deformity of the penis or loss of power.  The July 2013 VA examination reflected a normal penis with no deformities.  The examiner noted that he was not able to achieve an erection sufficient for penetration and ejaculation without medication, but he could with medication.  March 2015, June 2015, and September 2015 VA treatment records reflect the Veteran reported having fair erections.  

Thus, the Board finds that while the Veteran's erectile dysfunction has been manifested by a loss of erectile power, as he has indicated he cannot achieve an erection without medication, there is no evidence of a deformity of the penis.  Accordingly, a compensable disability rating for erectile dysfunction is not warranted.  

The Board notes that the Veteran does not have a left testicle, but that is separately service-connected, and is not considered a deformity of the penis that would warrant a rating under DC 7522.  

The Board notes that the Veteran is in receipt of special monthly compensation (SMC) for the loss of use of a creative organ from January 31, 2001, the effective date of the award of service connection for residuals of the removal of the left testicle.  38 U.S.C. §1114(k) and 38 C.F.R. § 3.350(a).  In the November 2014 VA Form 9, Appeal to the Board of Veterans Appeals, the Veteran argued that he is entitled to a separate SMC award for his erectile dysfunction.  VA regulations authorize the payment of SMC if a Veteran, as a result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs.  38 U.S.C. § 1114(k).  Loss of use of one testicle is established when (a) The diameters of the affected testicle are reduced to one-third of the corresponding diameters of the paired normal testicle, or (b) The diameters of the affected testicle are reduced to one-half or less of the corresponding normal testicle and there is alteration of consistency so that the affected testicle is considerably harder or softer than the corresponding normal testicle; or (c) If neither of the conditions (a) or (b) is met, when a biopsy, recommended by a board including a genitourologist and accepted by the Veteran, establishes the absence of spermatozoa.  38 C.F.R. § 3.350(a)(1)(i).

As noted above, the Veteran is already in receipt of SMC pursuant to 38 U.S.C.      § 1114(k) for his missing left testicle.  38 C.F.R. § 3.350(a) notes "loss or loss of use of one or more creative organs."  The Veteran's receipt of SMC under this provision for the missing left testicle precludes him from being awarded SMC again under 38 U.S.C. § 1114(k), as the already effective SMC award compensates for loss of use of one or more creative organs and does not provide for separate awards based on erectile dysfunction.  Therefore, the Veteran is not entitled to another SMC award under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a).  

In the November 2014 VA Form 9 the Veteran also argued that there had been clear and unmistakable error (CUE) in making this decision pursuant to 38 C.F.R § 20.1403.  Motions to revise a final decision on the basis of CUE may only be made as to final decisions.  The rating decision in question here is not final, and the Board shall review the evidence de novo.  Under these circumstances, a CUE motion is not appropriate.

In conclusion, an increased compensable disability rating for erectile dysfunction is not warranted.  As the preponderance of the evidence is against the claim, the claim must be denied.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

An increased disability rating for erectile dysfunction, currently noncompensable, is denied.



____________________________________________
M. Sorisio
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs