Citation Nr: 21061388 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-24 249 DATE: October 1, 2021 REMANDED Entitlement to a compensable rating for erectile dysfunction is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from April 1968 to April 1970, to include service in Vietnam. His decorations include the Combat Action Ribbon. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Boston, Massachusetts. This matter was previously before the Board in October 2019 and February 2021. By an October 2019 decision, the Board denied a compensable rating for the Veteran's service-connected erectile dysfunction. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted a Joint Motion for Remand (JMR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's decision and remanding the matter for readjudication. In February 2021, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior noncompensable rating and returned the case to the Board. Entitlement to a compensable rating for erectile dysfunction is remanded. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. Erectile dysfunction is evaluated pursuant to Diagnostic Code 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 (SMC) under 38 C.F.R. § 3.350. 38 C.F.R. § 4.115b. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. The Board notes that the Veteran is in receipt of SMC for his service-connected erectile dysfunction based on loss of use of a creative organ. Therefore, the issue of his entitlement to SMC is not before the Board. The Board further notes that there is no dispute the Veteran has loss of use of erectile power. Rather, the issue in this case is whether he has deformity of the penis so as to warrant the 20 percent evaluation under Diagnostic Code 7522. In this regard, the Board notes that the Court has clarified that a "deformity" in this context means "a distortion of the penis, either internal or external." Williams v. Wilkie, 30 Vet. App. 134 (2018). The Veteran seeks to establish a compensable schedular rating for his erectile dysfunction based on a penile deformity. He maintains, in essence, that he has an internal deformity of the penis; specifically, a urethral stricture and residual scarring from prostate surgery. Prior VA examinations afforded the Veteran in connection with his prostate surgery noted the presence of erectile dysfunction due to his service-connected prostate cancer. However, as indicated in the Board's February 2021 remand, he was not afforded an examination for the specific purpose of evaluating his erectile dysfunction. Further, the prior examinations did not explicitly address whether an internal distortion of the penis was present. Accordingly, the Board remanded the case to the AOJ for a new examination. The Veteran underwent an examination for erectile dysfunction in March 2021. He declined to undergo a physical examination of his penis. Nevertheless, it was noted that he reported normal anatomy with no penile deformity or abnormality, nor any testicular deformity or abnormality. As noted above, the Veteran's argument is not that he has an external deformity of the penis. Rather, his assertion is that he suffers from urethral stricture and internal scarring as a result of his treatment for prostate cancer, and that those structural abnormalities represent an internal distortion of the penis. The March 2021 examiner did not specifically address that point. As such, an addendum opinion is required. In this regard, the Board notes that the Veteran has reported undergoing many dilations of his urethra over time. If any medical records exist with respect to such dilations, efforts should be made to procure them. See, e.g., 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). This matter is REMANDED for the following action: 1. Ask the Veteran to identify and provide a release for any care providers who might possess new or additional evidence pertinent to the issue on appeal, to particularly include with respect to repeated dilations of his urethra. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. After the foregoing development has been completed to the extent possible, make arrangements to obtain an addendum opinion from the examiner who evaluated the Veteran in March 2021. The examiner should review the record and provide an opinion as to whether the urethral stricture and/or internal scarring the Veteran has suffered as a result of his treatment for prostate cancer can be properly considered to be internal distortions of the penis. In so doing, the examiner should clarify to the extent possible whether the urethral stricture and internal scarring at issue impact the portion of the urethra that passes through the penis (i.e., the penile urethra), or whether their impact is limited to other anatomical portions of the urethra (i.e., the bulbar and/or prostatic urethra). A complete rationale for all opinions expressed should be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.