Citation Nr: 21001603 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-58 408A DATE: January 11, 2021 ORDER A disability rating of 10 percent, but no higher, for a residual scar associated with penile implant surgery is granted. A disability rating of 20 percent, but no higher, for erectile dysfunction is granted from February 6, 2017. FINDINGS OF FACT 1. The Veteran has a single painful scar associated with penile implant surgery. 2. From February 6, 2017, the Veteran’s service-connected erectile dysfunction has been manifested as an external deformity of the penis with a loss of erectile power. CONCLUSIONS OF LAW 1. The criteria for a 10 percent disability rating, but no higher, for a residual scar associated with penile implant surgery have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7804. 2. The criteria for a 20 percent disability rating, but no higher, for erectile dysfunction have been met from February 6, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.115b, Diagnostic Code 7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1965 to November 1967, and from June 1968 to May 1969. A Board hearing was held before the undersigned Veterans Law Judge in March 2020, and a transcript of the hearing is of record. The issues on appeal were previously remanded by the Board in June 2020 for additional development. The Board finds the agency of original jurisdiction (AOJ) has substantially complied with the Board’s remand directives, and the evidence of record is sufficient to proceed with a decision. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Scar The Veteran was awarded service connection for a residual scar associated with penile implant surgery from February 9, 2016. The Veteran was assigned a noncompensable rating based on having a linear superficial scar that was not painful or unstable, and measured 0.01 sq. cm. See March 2016 rating decision. The Veteran timely perfected the evaluation of his residual scar associated with penile implant surgery. See April 2016 notice of disagreement; see also December 2016 VA Form 9. Scars are evaluated under the Schedule of Ratings for Skin, 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805. The Board notes that the Schedule of Ratings for Skin were amended effective August 13, 2018. See 38 Fed. Reg. 32,592 (July 13, 2018). Prior to August 13, 2018, the Board will consider the old version of the diagnostic codes only (old code); however, for the period beginning August 13, 2018 the Board will consider both the old and the amended version (amended code) of the diagnostic codes and rate based on whichever is most favorable to the Veteran. Diagnostic Code 7800 provides for evaluation of scars of the head, face, or neck, and is not applicable in this case. Prior to August 13, 2018, Diagnostic Code 7801 provides for a 10 percent disability evaluation for a scar that is not of the head, face, or neck, that is deep and nonlinear, and has an area of at least 6 square inches (39 sq. cm.). A “deep scar” is defined as one associated with underlying soft tissue damage. The amended code provides a 10 percent rating for a scar that is not of the head, face, or neck that is associated with underlying soft tissue damage, and that has an area of at least 6 square inches (39 sq. cm.). Higher ratings are available if larger areas are affected. Prior to August 13, 2018, Diagnostic Code 7802 provides for a 10 percent disability evaluation for a scar not of the head, face, or neck, that is superficial and nonlinear, and has an area of at least 144 square inches (929 sq. cm.). A “superficial scar” is defined as one not associated with underlying soft tissue damage. The amended code provides a 10 percent rating for a scar that is not of the head, face, or neck that is not associated with underlying soft tissue damage and which covers an area of at least 144 square inches (929 sq. cm.) or more. A 10 percent disability rating is the maximum available under both the old code and the amended code. Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. Diagnostic Code 7804 provides for a 10 percent disability evaluation for one or two scars that are unstable or painful. A 20 percent disability evaluation is assigned where there are three or four scars that are unstable or painful. A 30 percent disability evaluation is assigned where there are five or more scars that are unstable or painful. An unstable scar is one where there is frequent loss of skin covering over the scar. If one or more scars are both unstable and painful 10 percent is added to the evaluation. Under the new and amended codes, pursuant to Diagnostic Code 7805, a scar may be rated on any disabling effect(s) not considered as part of Diagnostic Codes 7800 to 7804. During the March 2020 Board hearing, the Veteran reported that the scar associated with his penile implant surgery is painful to touch. In June 2020, the Board remanded the Veteran’s claim for an initial compensable rating to afford the Veteran a VA examination to determine the nature and severity of his penile implant scar. Pursuant to the Board remand, the Veteran underwent a VA scars examination in July 2020. The examiner reported the Veteran’s surgical scar associated with his penile implant surgery measured 0.1 cm. by 0.1 cm., with an approximate total area of 0.01 sq. cm. The examiner indicated the Veteran’s scar was not painful or unstable. In considering the evidence of record, the Board resolves reasonable doubt in favor of the Veteran in finding that an initial 10 percent disability rating is warranted based on his report that the surgical scar associated with his penile implant surgery is painful. See 38 C.F.R. § 4.118, Diagnostic Code 7804. Although the July 2020 VA examiner reported the Veteran’s scar was not painful or unstable, the Board assigns weight to the Veteran’s March 2020 testimony in which he reported his scar is painful, to include when he rolls over in his sleep and in the shower. The Veteran is competent to report observable symptoms such as pain associated with his scar, and the Board finds him credible in this regard. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, 470 (1994). The evidence of record is against a finding that a disability rating in excess of 10 percent, to include under any other (old or amended) diagnostic code, is warranted for the Veteran’s scar associated with his penile implant surgery. The Veteran’s scar has not been shown to be deep and nonlinear, or associated with underlying soft tissue damage, and measuring at least 12 square inches (77 sq. cm.), to warrant a disability rating in excess of 10 percent. Resolving reasonable doubt in favor of the Veteran, an initial 10 percent disability rating is granted based on a single painful scar associated with penile implant surgery. Erectile Dysfunction The Veteran was awarded service connection with a noncompensable rating for erectile dysfunction associated with service-connected diabetes mellitus from February 18, 2004. In December 2015, the Veteran indicated he was seeking an increased rating for his service-connected erectile dysfunction. See December 2015 VA Form 21-526EZ. The Board notes that the issue of special monthly compensation (SMC) based on loss of a creative organ associated with erectile dysfunction was addressed in the June 2020 Board decision. Therefore, that matter is no longer part of the instant appeal. Erectile dysfunction is not specifically listed in the VA Rating Schedule, and is evaluated by the diagnostic code that most closely identifies the body part or system affected. See 38 C.F.R. § 4.20. Under 38 C.F.R. § 4.115b for rating diagnoses of the genitourinary system, Diagnostic Code 7522 provides a maximum 20 percent disability rating for a “deformity of the penis with loss of erectile power.” A separate rating for erectile dysfunction is only assigned where the veteran meets the Rating Schedule criteria for a compensable rating. In Williams v. Wilkie, the Court of Appeals for Veterans Claims (Court) noted that Diagnostic Code 7522 requires a “deformity” for a compensable rating, and that VA has not expressly defined this term. Williams v. Wilkie, 30 Vet. App. 134, 138 (2018). As such, the Court assigned the ordinary meaning of the word “deformity,” which is a “distortion of any part or general disfigurement of the body.” Dorland’s Illustrated Medical Dictionary 478 (32d ed. 2012). The Court held that “deformity” under Diagnostic Code 7522 means a distortion of the penis, either internal or external. In reviewing the medical and lay evidence of record prior to February 6, 2017, the Veteran’s erectile dysfunction was manifested by an inability to achieve or maintain a satisfactory erection. In December 2016, the Veteran reported he was informed he had a low sperm count and was unable to have children. Prior to February 6, 2017, the evidence does not suggest, and the Veteran has not asserted that he had a deformity of the penis with loss of erectile power that would warrant a 20 percent disability rating. In February 2016, the Veteran underwent surgery to have an inflatable penile prosthesis inserted. See February 2016 VA urology note. In a February 6, 2017 VA note, the Veteran reported that his penile prosthesis remained functional, but that his penis was persistently erect. See also February and May 2017 VA urology consult. During the March 2020 Board hearing, the Veteran reported having a constant erection due to his penile prosthesis. The Veteran reported he had to wear a coat or shirt over his pants to hide his erection in public. The Veteran reported loss of feeling in his penis and scrotum. The Veteran indicated that although he had a persistent erection, he had marital problems as a result of an inability to have sexual relations. The Veteran reported urinating on his clothes on occasion due to his persistent erection. Pursuant to the June 2020 Board remand, the Veteran was afforded a VA examination in July 2020 to determine the nature and severity of his erectile dysfunction. The examiner reported the Veteran had a current diagnosis of erectile dysfunction with penile implant dysfunction. The Veteran indicated the penile implant initially worked well following the surgery in February 2016, but had since developed sustained tumescence due to dysfunction of the inflatable penile prosthesis. On physical examination, the examiner indicated the Veteran had a penis deformity manifested by sustained tumescence. In considering the evidence of record for the period on appeal, the Board finds a 20 percent disability rating is warranted from February 6, 2017 based on evidence of a deformity of the penis with loss of erectile power. In reaching this determination, the Board notes that the first evidence that the Veteran had a persistent erection was in the February 6, 2017 VA note. The medical and lay evidence of record supports a finding that the Veteran’s sustained tumescence as a result of his penile implant dysfunction is an external distortion of the penis. The assignment of a 20 percent disability rating, the maximum allowable under Diagnostic Code 7522, contemplates the Veteran’s difficulty with sexual relations due to loss of erectile power and the problems associated with the “deformity” caused by sustained tumescence. In sum, the Board finds that a 20 percent disability rating for erectile dysfunction, manifested as an external deformity of the penis with a loss of erectile power, is warranted from February 6, 2017. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Mask, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.