Citation Nr: 21062777 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-58 443 DATE: October 12, 2021 ORDER Entitlement to a compensable disability rating for erectile dysfunction is denied. FINDING OF FACT The Veteran's erectile dysfunction has not manifested with a penile deformity. CONCLUSION OF LAW The criteria for a compensable disability rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7599-7522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1973 to April 1980 and from April 1982 to April 1995. The Board previously remanded the Veteran's case for additional development in August 2019. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to a compensable disability rating for 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. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Veteran is seeking entitlement to a compensable rating for his erectile dysfunction (ED). The Veteran's service-connected erectile dysfunction has been rated as noncompensably disabling by analogy under 38 C.F.R. § 4.115b, Diagnostic Codes 7599-7522 for penis, deformity, with loss of erectile power. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. See 38 C.F.R. § 4.31. Under the rating schedule, the only compensable rating for ED is a 20 percent disability rating when there is deformity of the penis, with loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7522. The text of DC 7522 makes clear that a compensable rating is warranted when there is both loss of erectile function and deformity of the penis. Id.; see also Williams v. Wilkie, 30 Vet. App. 134, 138 (2018) (noting that DC 7522 requires a deformity for a compensable rating) A footnote to Diagnostic Code 7522 also indicates the disability is to be reviewed for entitlement to special monthly compensation (SMC) for loss of use of a creative organ under 38 C.F.R. § 3.350 (a). In this case, the Veteran is in receipt of SMC for loss of use of a creative organ. VA treatment reports do not reflect treatment for (or a diagnosis of) a deformity of the penis. The evidence indicates that the Veteran does have loss of erectile power. See VA Male Reproductive Organ examinations in June 2016, March 2017, October 2019, and October 2020. However, the evidence shows he does not have any deformity of the penis. That is, the requirement under Diagnostic Code 7522 of deformity of the penis "with" loss of erectile power clearly means that both factors are required. Indeed, both the March 2017 and October 2019 VA examinations report physical inspection of the Veteran's penis and do not report any deformity. An evaluation from a private physician in April 2020 also does not report deformity of the penis. The Veteran has not reported, and the evidence does not show, any penile deformity. The Board notes that the Veteran denied the need for physical inspection during his June 2016 and October 2020 VA examinations based upon his own reports that his penis was normal without deformity. The Veteran also submitted a statement from his wife regarding his erectile dysfunction in August 2016. While she reported that the Veteran is unable to perform sexually due to his condition, she did not report any deformity of the penis. There is no suggestion of either internal or external distortion of the penis. Accordingly, the lay and medical evidence does not warrant a compensable evaluation for erectile dysfunction. Other diagnostic codes for the penis or testes that provide for a rating greater than zero percent are similarly not more appropriate, as the facts of the case do not support their application. See 38 C.F.R. § 4.115b, Diagnostic Code 7520 (removal of half or more of the penis); Diagnostic Code 7521 (removal of the penis glans); or, Diagnostic Code 7523 (atrophy of the testes). Indeed, DC 7522 specifically governs ratings for erectile dysfunction, and the Veteran has not been shown to have removal of the penis, penis glans, or atrophy of the testes. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence); Copeland v. McDonald, 27 Vet. App. 333, 336 (2015) (where a condition is listed in the rating schedule, rating by analogy is not appropriate). As noted above, the Veteran has already been granted special monthly compensation pursuant to 38 U.S.C. § 1114 (k) based on the loss of use of a creative organ for his erectile dysfunction. Accordingly, the claim for entitlement to a compensable rating for erectile dysfunction is denied. As the preponderance of the evidence is against the claim, there is no doubt to resolve. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.M. Johnson, 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.