Citation Nr: 21002544 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 14-36 462 DATE: January 14, 2021 ORDER A disability rating of 70 percent, but no higher, for chronic adjustment disorder effective January 25, 2013 is granted. An initial compensable rating for erectile dysfunction (ED) is denied. Special monthly compensation (SMC) based on aid and attendance is denied. SMC based on loss of use of feet is denied. FINDINGS OF FACT 1. The Veteran’s chronic adjustment disorder is manifested by impaired impulse control, difficulty adapting to stressful situations, and near continuous panic and depression affecting his ability to function effectively, but not to the level of total social impairment. 2. The Veteran’s ED is manifested by of loss of erectile power, but not deformity of the penis. 3. The Veteran’s service-connected disabilities do not prevent him from attending to the needs of nature, caring for himself, or protecting himself from the hazards of his environment. 4. The preponderance of the competent and probative evidence weighs against a finding that the Veteran’s service-connected disabilities result in no effective function of the feet. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, but no higher, for chronic adjustment disorder as of January 25, 2013 are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9440. 2. The criteria for an initial compensable rating for ED are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.115b, DC 7599-7522 3. The criteria for SMC based on aid and attendance are not met. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350, 3.352(a). 4. The criteria for SMC based on loss of use of feet are not met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 4.63. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1978 to September 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions. The Veteran testified before the undersigned Veteran’s Law Judge in a February 2020 hearing; a transcript is of record. The Board remanded the claims in June 2020 to obtain updated medical opinions. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Chronic Adjustment Disorder The Veteran was initially assigned a 30 percent rating for chronic adjustment disorder under DC 9440, which is part of the General Rating Formula for Mental Disorders found in 38 C.F.R. § 4.130. During the pendency of this appeal the Veteran’s rating was increased to 70 percent effective September 16, 2020 in a September 2020 rating decision. As this was not a full grant of benefits sought, the Veteran’s claim is still considered on appeal. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. A higher 70 percent rating is assigned when general anxiety disorder causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. The 30 percent rating effective from January 25, 2013 to September 16, 2020, contemplates many of the Veteran’s symptoms, including suspiciousness. However, the Board finds that a 70 percent rating is warranted. The Veteran underwent a VA examination in March 2014. The examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), consistent with a 30 percent rating. However, the examiner noted that the Veteran is depressed about 3-4 days per week. Further, the examiner noted that the Veteran has had anger issues since he has been out of the military. Further, a VA medical note from February 2014 noted that the Veteran reported being depressed every day and was easily agitated with increased anxiety at times. Additional notes dated May 2015 confirm the Veteran’s depression since service as well as anger issues. These issues were again shown during the Veteran’s February 2020 hearing, the Veteran testified that his anger issues were so severe that they affected his ability to hold a job. The Veteran then underwent another VA examination in September 2020. The examiner found the Veteran to have occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Further, the Veteran noted that the Veteran had speech intermittently illogical, impaired impulse control, as well as neglect of personal appearance. These findings are all consistent with a 70 percent rating. Based on the above, the Board finds that a 70 percent rating is warranted for the entire period on appeal. The September 2020 VA examination noted occupational and social impairment at the level to establish a 70 percent rating. These findings combined with the Veteran’s consistent complaints of near constant depression dating back to February 2014 show that the 70 percent rating for his adjustment disorder goes back to the date of the Veteran’s claim. Although, the March 2014 rating decision noted occupational and social impairment consistent with a 30 percent rating, the examiner also noted near continuous depression consistent with a 70 percent rating. The maximum 100 percent rating is assigned when general anxiety disorder causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. This 100 percent rating is not warranted. There is nothing in the records to indicate that the Veteran has ever suffered from total occupational and social impairment. The September 2020 VA examination noted no gross cognitive impairment or overt memory issues. Similarly, the March 2014 VA exam noted the Veteran to be generally functioning satisfactorily. This illustrates that the Veteran does not have total social impairment that would warrant a 100 percent rating. For these reasons, a 70 percent rating, but no higher, is warranted for chronic adjustment disorder for the entire period on appeal. ED The Veteran is assigned a noncompensable rating for erectile dysfunction pursuant to 38 C.F.R. § 4.155b, DC 7599-7522. Erectile dysfunction is not specifically listed in the rating schedule. The most closely aligned rating criteria for the disability are found in DC 7522, which provides that deformity of the penis with loss of erectile power is rated 20 percent disabling, and the adjudicator is to review for entitlement to special monthly compensation under 38 C.F.R. § 3.350 and 38 C.F.R. § 4.115b. In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. In this case, that means that, for a compensable rating to be assigned, the medical evidence must establish deformity of the penis with loss of erectile power. To obtain a compensable rating under DC 7522, deformity of the penis with loss of erectile power must be demonstrated. In the present case, it is undisputed that the Veteran has loss of erectile power without medication. However, the rating criteria also require deformity of the penis to warrant a compensable rating. The medical evidence in this case is negative for complaints, treatments, or findings of penile deformity. VA examinations and the Veteran’s own statements are absent of any indications of penile deformity. Specifically, the Veteran underwent a VA examination in February 2014 where the examiner indicated that the Veteran does not have retrograde ejaculation, nor does he have a history of chronic epididymitis, epididymo-orchitis or prostatitis. On examination, the examiner noted normal anatomy with no penile deformity or abnormality. Additionally, in a September 2020 VA examination, the examiner confirmed the findings from the February 2014 examination. Although the examiner noted abnormal penis anatomy, no deformity was noted. The Board has also considered the statements submitted by the Veteran in support of his claim. The Board finds that the Veteran is a lay person and is competent to report observable symptoms he experiences through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran’s reports of loss of erectile power are found credible, and he has already established service connection for erectile dysfunction. However, he has not alleged any physical deformity of the penis, as opposed to a functional deficiency of the penis. No medical professional has identified any deformity of the penis, and the Veteran has not submitted any evidence to support a finding that there is any deformity of the penis. The key factor in establishing entitlement to a compensable rating for erectile dysfunction is to show a penile deformity in addition to loss of erectile power. 38 C.F.R. § 4.115b, DC 7522. Here, the medical evidence in the file does not indicate any deformity of that penis that would entitle the Veteran to a compensable rating for erectile dysfunction. Thus, the preponderance of the evidence is against the claim for a compensable rating for erectile dysfunction. Therefore, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). SMC based on aid and attendance SMC is payable if, as the result of service-connected disability, the Veteran is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: (1) the inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the veteran from the hazards or dangers incident to his daily environment. It is not required that all the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of SMC based on need for aid and attendance). In this instance, there is presently no evidence of record that establishes that the Veteran’s disability rises to the level of the factors described in 38 C.F.R. § 3.352(a). The Veteran’s September 2020 VA examination stated that he was able to perform activities of daily living, including maintenance of minimal personal hygiene. Further, there is no evidence of record that shows the Veteran so helpless as to need regular aid and assistance. Lastly, during the Veteran’s February 2020 hearing, the Veteran did not claim that he needed regular aid and assistance. Rather, he testified that he does not have any trouble feeding himself and that he was able to drive himself to the hearing, illustrating his ability to handle personal functions. As the preponderance of evidence is against the claim, it must be denied, and the benefit of the doubt doctrine is not for application. SMC based on loss of use of feet SMC under 38 U.S.C. § 1114(l) and 38 C.F.R. § 3.350(b) is payable as the result of service-connected disability if a veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less (or concentric contraction of the field of vision beyond 5 degrees in both eyes); is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. The Veteran is in receipt of service connection for adjustment disorder, degenerative disc disease, hemorrhoids, radiculopathy of the left lower extremity, tinnitus, right ulna fracture, and ED. “Loss of use” of a foot is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. §§ 3.350(a)(2)(i), 4.63. Examples under 38 C.F.R. § 3.350(a)(2) which constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, and complete paralysis of the external popliteal (common peroneal) nerve and consequent foot-drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of that nerve. See also 38 C.F.R. § 4.63. If loss of use of a foot is found to exist, a veteran is entitled to SMC in addition to the basic rate of compensation otherwise payable on the basis of degree of disability. See generally 38 C.F.R. § 3.350. In Tucker v. West, 11 Vet. App. 369, 373 (1999), the U.S. Court of Appeals for Veterans Claims (Court) stated that the relevant inquiry concerning loss of use is not whether amputation is warranted, but whether the claimant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. The Court also stated that in accordance with 38 C.F.R. § 4.40, the Board is required to consider the impact of pain in making its decision and to articulate how pain on use was factored into its decision. Id. “Loss of use” may be organic or “functional” in origin. See VAOPGCPREC 60-90 (Jul. 18, 1990) (holding that SMC was warranted for functional (as opposed to organic) loss of the foot due to service-connected functional hysteria or conversion reaction, where such loss was permanent in nature). In Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017), the Court clarified that the standard for “loss of use of the feet” under 38 C.F.R. §§ 3.350(a)(2)(i) and 4.63 is not the same as “loss of use of the lower extremities” for purposes of entitlement to specially adapted housing under 38 C.F.R. § 3.809(b). That is, “loss of use of the feet” is a more stringent standard for a veteran to meet than “loss of use of the lower extremities.” Id. In Jensen, the Court noted that “loss of use” in a general sense was the “deprivation of the ability to avail oneself” of that extremity. Id. The issue in the present case is whether the Veteran’s service-connected bilateral lower extremity radiculopathy causes loss of use of both feet for purposes of entitlement to SMC under 38 U.S.C. § 1114(l). See 38 C.F.R. §§ 3.350(a)(2)(i), (b), 4.63. The Veteran underwent a VA examination in October 1998. The examiner, when discussing the effect of the Veteran’s back pain on his extremities found that the Veteran’s sensation in his feet intact noting only mild dullness in the right foot. Another VA examination was performed in July 2009. The examiner noted that the Veteran had mild decreased sensation of the left lower extremity and normal sensation of the right lower extremity. These findings were again confirmed in a subsequent November 2012 VA examination. Further, the Veteran testified during his February 2020 hearing that he has weakness in his legs, but at no point, stated that his issues are related to the inability to use his feet. In totality, the evidence does not show or suggest that the Veteran’s service connected disabilities results in loss of use of both feet. As the preponderance of the evidence is against the claim, it must be denied, and the benefit of the doubt doctrine is not for application. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jorge Barroso, 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.