Citation Nr: 21004687 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-08 913 DATE: January 27, 2021 ORDER Entitlement to an increased (compensable) rating for erectile dysfunction is denied. FINDING OF FACT The evidence reflects that the Veteran's service-connected erectile dysfunction has been manifested by an inability to achieve an erection for which special monthly compensation has been awarded; however, competent medical evidence indicates that there is no internal or external physical deformity of the penis. CONCLUSION OF LAW The criteria for entitlement to an increased (compensable) rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1,4.3-4.7, 4.20, 4.27, 4.31, 4.115b, Diagnostic Code (DC) 7522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1960 to September 1960 and from November 1960 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This claim was remanded in September 2017 for further development. There has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In May 2019 the Board denied the Veteran’s claim of entitlement to an increased (compensable) rating for erectile dysfunction. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). By way of a July 2020 Order, the Court vacated the Board’s decision, with remand for adjudication consistent with the JMR. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017); 38 U.S.C. § 7107(a)(2) (2012). Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability determinations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the current level of disability that is of primary concern, and VA must only address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in such cases, when the factual findings show distinct time periods during which the veteran exhibits symptoms of the disability at issue, and such symptoms warrant different disability ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to an increased (compensable) rating for erectile dysfunction The Veteran generally contends that a higher rating is warranted for his erectile dysfunction, based on a deformity of his penis and loss of all penile function. Pursuant to 38 C.F.R. § 4.115b, DC 7522, a 20 percent rating is warranted for deformity of the penis with the loss of erectile power. A 20 percent rating is the only schedular rating provided under that diagnostic code. The Boards notes that the inability to achieve an erection cannot be considered an actual deformity as the requirement under DC 7522 of deformity of the penis "with" loss of erectile power clearly means that both factors are required. 38 C.F.R. § 4.115b; see Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). A note for DC 7522 indicates that, when evaluating any claim involving loss or loss of use of one or more creative organs, refer to 38 C.F.R. § 3.350 to determine whether a veteran may be entitled to special monthly compensation. The Board notes that the Veteran is already in receipt of special monthly compensation under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) based on loss of use of a creative organ, effective February 13, 2012. The rating schedule authorizes the assignment of a noncompensable rating in every instance in which the rating schedule does not provide for such a rating and the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. A compensable rating for erectile dysfunction is not warranted at any point pertinent to the current claim for increase. Turning to the evidence of record, in an April 2012 VA treatment record, a VA physician notes that the Veteran has permanent erectile dysfunction due to prostate cancer. At his April 2014 VA review examination for prostate cancer it was reported that the Veteran had testicular atrophy. The VA examiner noted that the Veteran’s loss of testosterone caused him a lot of problems which included his testicles, as “[they] have atrophied and are quite painful.” The examiner indicated that the Veteran’s erectile dysfunction was “primarily due to atrophy of testicles and loss of testosterone.” As a result of the additional diagnosis from his April 2014 VA examination, the RO requested an addendum to determine whether the Veteran’s prostate cancer, to include radiation treatment, permanently aggravated his pre-existing low testosterone condition beyond its natural progression. Pursuant to this request, in September 2014 a VA examiner opined that the Veteran’s additional symptoms or conditions were neither caused by or aggravated by prostate cancer and/or radiation treatment. The examiner explained that the Veteran was diagnosed with low testosterone in 1991 and treated with testosterone patches; however, when the Veteran was diagnosed with prostate cancer in 2009, the testosterone patches were discontinued. The examiner further explained that although the April 2014 VA examiner commented that the Veteran’s testicular atrophy was related to the discontinuation of the testosterone patch, based on her review of the record and timeline, the additional conditions, to include testicular atrophy was related to low testosterone which the Veteran had since 1991. She concluded that the Veteran’s prostate cancer did not cause or aggravate the low testosterone. The September 2014 VA examiner’s opinion is more persuasive than the April 2014 VA examiner opinion as it considered the full picture of the Veteran’s medical history and accounts for his testosterone treatment, which predates his prostate cancer diagnosis. A January 2015 VA treatment record notes that the penis was intact. During the May 2017 Board hearing, the Veteran testified that he had complete atrophy of the penis and its muscles due to erectile dysfunction secondary to prostate cancer. The Veteran also claimed that he had disfigurement of the penis. As a result of his testimony, the Veteran was afforded a VA examination in January 2019 to determine the severity of his erectile dysfunction. There, the Veteran reported that his condition worsened and that he had been unable to obtain an erection for years. The examiner confirmed the Veteran’s erectile dysfunction diagnosis and noted that the Veteran required continuous testosterone medication for his condition. The physical examination revealed a normal penis, testes, and epididymis. This in-person examination is adequate as the VA examiner noted the Veteran’s self-reported medical history and performed a complete examination of the Veteran’s male reproductive organ; noting that the penis, testicle, and epididymis exams were all performed in the presence of an assistant. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the examination is both probative and persuasive. The evidence noted above clearly establishes that the Veteran's erectile dysfunction has been manifested by an inability to achieve an erection for which he has been awarded special monthly compensation for loss of use of a creative organ. However, despite the Veteran's assertions that he has a deformed and disfigured penis, the clinical evidence is negative for any penile deformity, and neither the Veteran nor his representative has presented or identified any medical evidence to the contrary. Thus, while the Board has considered the Veteran's assertions as to deformity, such assertions are not medically supported. Absent competent evidence of penile deformity, the criteria for the 20 percent rating under DC 7522 simply are not met in this case. Indeed, the Veteran believes he has a deformed penis as he testified that he had “complete atrophy of everything” in May 2017; however, there is no competent and credible evidence of distortion of the penis either internal or external. See Williams v. Wilkie, 30 Vet. App. 134, 138 (2018). According to the April 2014 VA review examination, the Veteran had testicular atrophy, which could be a sign of either internal or external deformity. However, the September 2014 VA examiner competently and credibly reasoned that this condition was due to his pre-existing low testosterone and not his prostate cancer or radiation treatment; thus, negating the theory that it was secondary to his prostate cancer or treatment. During the course of this appeal the Veteran has undergone multiple VA examinations for his prostate cancer and one examination for erectile dysfunction. No examination report noted that the Veteran’s penis was deformed; rather it was reported as ‘normal’. Specifically, there are no reports found in treatment records or examination reports signaling an internal deformity such as nerve damage. Id. Moreover, the January 2019 VA examination report for prostate cancer states that the Veteran’s labs are essentially normal and “there is no need to add another diagnosis” which supports the January 2019 VA examination report identifying a normal penis, testes and epididymis. Thus, there is no competent evidence of penile deformity. The Board has also considered the applicability of other diagnostic codes for evaluating the Veteran's erectile dysfunction. However, after careful review of the available diagnostic codes and the medical evidence of record, no other diagnostic code provides a basis to assign a compensable rating for the Veteran's erectile dysfunction. For these reasons, the Board finds that the claim for a compensable rating for erectile dysfunction is not warranted. (Continued on the next page)   In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine but finds that the preponderance of the evidence is against assignment of a compensable rating for the Veteran's disability at any pertinent point. Thus, the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Telamour, 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.