Citation Nr: 21070576 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 20-08 898 DATE: November 24, 2021 ORDER Entitlement to an initial compensable evaluation from May 19, 2016, to November 22, 2020, for erectile dysfunction is denied. Entitlement to a 20 percent evaluation from November 23, 2020, for erectile dysfunction is granted. The appeal for whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for hiatal hernia is denied. REMANDED Entitlement to service connection for a prostate disorder, to include as secondary to service-connected erectile dysfunction and/or adjustment disorder, is remanded. FINDINGS OF FACT 1. From May 19, 2016, to November 22, 2020, erectile dysfunction was manifested by loss of erectile power. 2. From November 23, 2020, erectile dysfunction is manifested by a deformity of the penis, Peyronie's disease, with loss of erectile power. 3. In a September 1995 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran's claim of entitlement to service connection for hiatal hernia. 4. Evidence associated with the electronic claims file since the September 1995 rating decision, when considered by itself or in connection with evidence previously assembled, does not relate to unestablished facts necessary to substantiate the claim of service connection for hiatal hernia. CONCLUSIONS OF LAW 1. From May 19, 2016, to November 22, 2020, the criteria for entitlement to an initial compensable evaluation for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.115B, Diagnostic Code 7522 (2021). 2. From November 23, 2020, the criteria for entitlement to a 20 percent evaluation, but no higher, for erectile dysfunction have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.115B, Diagnostic Code 7522 (2021). 3. The September 1995 rating decision that denied the Veteran's claim of service connection for hiatal hernia is final. 38 U.S.C. § 7105(b) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2021). 4. The criteria for reopening the claim of entitlement to service connection for hiatal hernia have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1984 to June 1984 and from August 1985 to October 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions rendered in June 2017, August 2018, and January 2019. In March 2021, the Veteran and his spouse testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. 1. Entitlement to an initial compensable evaluation from May 19, 2016, to November 22, 2020, for erectile dysfunction 2. Entitlement to a 20 percent evaluation from November 23, 2020, for erectile dysfunction Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2021). An intent to file form was received on May 19, 2016, and within a year the Veteran filed a service connection claim for erectile dysfunction. In a June 2017 rating decision, the AOJ granted entitlement to service connection for erectile dysfunction, assigning a noncompensable evaluation, under 38 C.F.R. § 4.115B, Diagnostic Code 7599-7522, effective May 19, 2016. He seeks a compensable evaluation for erectile dysfunction. Hyphenated diagnostic codes, including a diagnostic code ending in the digits "99," are used when there is no specifically applicable diagnostic code, and the disability is rated by analogy. 38 C.F.R. § 4.27. Here, the Veteran's erectile dysfunction is rated by analogy using the criteria for deformity of the penis with loss of erectile power under Diagnostic Code 7522. Deformity of the penis with loss of erectile power warrants a 20 percent evaluation under 38 C.F.R. § 4.115B, Diagnostic Code 7522. For the time period from May 19, 2016, to November 22, 2020, the Board finds that the Veteran's disability picture continues to more nearly approximate residuals of erectile dysfunction with loss of erectile power under 38 C.F.R. § 4.115B, Diagnostic Code 7599-7522 and the assignment of an initial compensable evaluation is not warranted. Evidence of record, to include VA treatment records dated in January 2015 and October 2018 as well as VA examination reports/Disability Benefits Questionnaires (DBQ) dated in May 2017, October 2017, September 2018, December 2018, April 2019, and August 2019, showed objective findings or the Veteran's specific assertions of normal anatomy with no penile deformity or abnormality. An October 2018 private treatment provider statement detailed that erectile dysfunction could worsen with development of hypertension, diabetes mellitus, and benign prostatic hypertrophy (BPH). A DBQ from the Veteran's VA urologist received on November 23, 2020, detailed findings of erectile dysfunction with a penis deformity listed as Peyronie's disease. Therefore, for the time period from November 23, 2020, the Board has determined that the Veteran's disability picture more nearly approximates residuals of erectile dysfunction with deformity of the penis with loss of erectile power under 38 C.F.R. § 4.115B, Diagnostic Code 7599-7522. The Board is cognizant that the November 2020 DBQ listed an onset date of May 19, 2016, for Peyronie's disease. However, evidence of record does not show any findings of Peyronie's disease prior to November 2020. In fact, it contains objective findings as well as lay assertions from the Veteran of no penile deformity before that time. It also does not show any loss or removal of part of the penis (or glans penis) during the appeal period. Thus, the assignment of a 20 percent evaluation, but no higher, is warranted during this time period and the claim is granted to this extent. The Veteran has also already been awarded entitlement to special monthly compensation under 38 U.S.C. § 1114, subsection (k) and 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ, effective from May 19, 2016. Evidence of record showed no distinct periods of time during the appeal period when the Veteran's service-connected erectile dysfunction varied to such an extent that a rating greater than the noncompensable and 20 percent ratings currently assigned would be warranted. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board acknowledges that the Veteran is competent to report observable symptoms such as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). He is not, however, competent to identify a specific level of disability. Competent evidence concerning the nature and extent of the Veteran's service-connected disability has been provided by VA medical professionals who have examined him. The medical findings adequately address the criteria under which the disability is evaluated and clearly demonstrate the degree of impairment attributable to the service-connected disability. The Board accords these findings greater weight than the Veteran's assertions as to when deformity of the penis onset. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). In sum, the Board concludes that the symptomatology noted in the medical and lay evidence has been adequately addressed by the current ratings and that the Veteran's service-connected erectile dysfunction residuals do not meet the applicable rating criteria for the assignment of an initial compensable evaluation from May 19, 2016, to November 22, 2020, but do meet the applicable criteria for the assignment of a 20 percent evaluation from November 23, 2020. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the assignment of any additional increased evaluations, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 3. The appeal for whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for hiatal hernia Unappealed rating decisions by the AOJ are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c) (2012). When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material". Smith v. West, 12 Vet. App. 312 (1999). VA regulation defines "new" as not previously submitted and "material" as related to an unestablished fact necessary to substantiate the claim. If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In this regard, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Entitlement to service connection for hiatal hernia was originally denied in a September 1995 rating decision. The AOJ found evidence did not show a hiatal hernia occurred in or was caused by service. Available service treatment records showed complaints of frequent indigestion at separation. Post-service evidence of record, including VA treatment records and a December 1994 VA examination report, detailed findings of questionable gastroesophageal reflux disease (GERD), gastritis, and reflux esophagitis with dysmotility. A December 1993 upper gastrointestinal series (UGI) was normal while a December 1994 VA UGI revealed free reflux at the gastroesophageal junction and esophageal dysmotility. The Veteran did not initiate a timely appeal for that matter. There is also no indication that additional evidence was received between September 1995 and September 1996, which would have necessitated a reconsideration of the issue on appeal. 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2010). Thus, the September 1995 rating decision is final as to the evidence then of record and is not subject to revision on the same factual basis. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2021). In 2018, the Veteran sought to reopen the claim of entitlement to service connection for hiatal hernia. This appeal arises from the AOJ's August 2018 and January 2019 rating decisions that indicated that the claim for service connection for hiatal hernia remained denied because the evidence submitted was not new and material. Regardless of the AOJ's actions, the Board must still determine whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed AOJ denial); see also Wakeford v. Brown, 8 Vet. App. 237 (1995) (finding that VA failed to comply with its own regulations by ignoring the issue of whether any new and material evidence had been submitted to reopen the veteran's previously and finally denied claims). Evidence of record received since the September 1995 rating decision includes written statements from the Veteran; private treatment records; VA examination reports dated in April 2019, August 2019, and November 2020; VA treatment records dated through July 2021; records from the Social Security Administration (SSA); assorted service personnel records and service treatment records; and a March 2021 Board hearing transcript. Initially, the Board acknowledges that additional service personnel records and service treatment records were added to the record after the September 1995 rating decision; however, these records did not contain evidence that is relevant to the question of entitlement to service connection for hiatal hernia. Thus, the claim need not be considered de novo under 38 C.F.R. § 3.156(c). Evidence received since the September 1995 rating decision is "new" in that it was not of record at the time of the September 1995 rating decision. This evidence is not "material", as it does not constitute evidence which, by itself or when considered with previous evidence of record, relates to unestablished facts necessary to substantiate the claim, i.e., the existence of a current disability. Shade v. Shinseki, 24 Vet. App. 110 (2010); Justus v. Principi, 3 Vet. App. 510 (1992). SSA, private, and VA treatment records showed continued findings of GERD and gastritis. A finding of hiatal hernia is not shown in the entire record. In written statements and during his March 2021 Board hearing, the Veteran has asserted that he has a hiatal hernia that was secondary to his service-connected adjustment disorder. However, the Board has determined that this assertion has no probative value, as the Veteran does not have a present disability of hiatal hernia at any point during the entirety of the appeal. Finally, he has already been awarded entitlement to service connection for GERD as secondary to his service-connected adjustment disorder and has a pending appeal for entitlement to an earlier effective date for that award as well. Under these circumstances, the Board concludes that the criteria for reopening the claim of entitlement to service connection for hiatal hernia have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021). REASONS FOR REMAND Entitlement to service connection for a prostate disorder, to include as secondary to service-connected erectile dysfunction and/or adjustment disorder, is remanded. The Board cannot make a fully informed decision on this matter, as the December 2018 and August 2019 VA examiners did not fully address whether the claimed prostate disorder was caused or aggravated by the Veteran's service-connected erectile dysfunction and/or adjustment disorder. The AOJ should obtain an additional VA medical opinion with supporting rationale to clarify the etiology of the Veteran's claimed prostate disorder. Evidence of record also reflects that the Veteran received VA medical treatment for his claimed disorder from Biloxi VAMC. As evidence of record only includes treatment records dated up to July 2021 from that facility, all pertinent VA treatment records should be obtained and properly associated with the record. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following actions: 1. Obtain VA treatment records pertaining to the Veteran's claimed prostate disorder from Biloxi VAMC for the time period from July 2021 to the present. 2. Thereafter, obtain a VA medical opinion to clarify the etiology of the Veteran's claimed prostate disorder. If an opinion cannot be provided without an examination, one should be provided. The electronic claims file must be made available to the examiner, and the examiner must specify in the medical opinion that the file has been reviewed. Based on a review of the evidence of record and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether any previously or currently diagnosed prostate disorder, to include benign prostatic hypertrophy (BPH), was caused or aggravated (worsened) by the Veteran's service-connected erectile dysfunction and/or adjustment disorder disabilities. The examiner is advised that permanent worsening of the condition beyond its natural progression need not be shown. The possibility of temporary worsening should be addressed. Aggravation refers to any incremental increase in disability, any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence (even if only temporary). In doing so, the examiner should discuss and acknowledge the findings contained in the post-service private and VA treatment records, the December 2018 and August 2019 VA examination reports/medical opinions, the January 2019 Hypertension DBQ submitted by the Veteran, and treatise evidence submitted by the Veteran, to include articles discussing BPH and stress. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2021). 3. After completing the above actions and any other necessary development, the claim on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the record since the February 2020 SOC. If the benefit on appeal remains denied, a SSOC must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. D. Deane, 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.