Citation Nr: 21070848 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 15-43 289 DATE: November 26, 2021 ORDER Entitlement to a separate compensable rating for erectile dysfunction is denied. FINDING OF FACT The Veteran does not have a penis deformity. CONCLUSION OF LAW The criteria for an initial compensable rating for erectile dysfunction have not been met or approximated. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.31, 4.115b, Diagnostic Code 7522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1968 to October 1969 and from February 1974 to February 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Board denied an increased rating for the Veteran's prostate cancer residuals, a temporary total evaluation based on surgical convalescence, and an earlier effective date for the grant of service connection for prostate cancer residuals. The Veteran only appealed the denial of an increased rating for prostate cancer residuals prior to November 17, 2015, to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Order, pursuant to a September 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the Board's May 2019 denial of an increased rating for prostate cancer residuals prior to November 17, 2015 and remanded the claim for action consistent with the terms of the parties' JMPR. Subsequently, the Veteran asserted that he should be entitled to a separate compensable rating for his erectile dysfunction. In February 2021 the Board, in pertinent part, remanded this issue for further development. It has since been returned to the Board for appellate review. During the pendency of the appeal, 38 C.F.R. § 4.115b, including Diagnostic Code 7522 applicable here, was amended effective November 14, 2021. See Schedule for Rating Disabilities; The Genitourinary Diseases and Conditions, 86 Fed. Reg. 54081 (Sep. 30, 2021) (to be codified at 38 C.F.R. § 4.115b). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Here, the old criteria provided a 20 percent rating for deformity of the penis with loss of erectile power. See 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2021). The new criteria that are effective November 14, 2021 provide a 0 percent rating for erectile dysfunction with or without penile deformity. Schedule for Rating Disabilities; The Genitourinary Diseases and Conditions, 86 Fed. Reg. 54081 (Sep. 30, 2021) (to be codified at 38 C.F.R. § 4.115b). Accordingly, the Board will apply the old criteria. The Veteran was afforded a VA examination in June 2021. The VA examiner found that the Veteran had erectile dysfunction and noted that the Veteran's erectile dysfunction began right after prostate cancer surgery. There was no deformity of the penis noted, internally or externally, on the examination. Indeed, the Veteran requested that his penis not be examined, and reported that he had normal anatomy with no penile deformity or abnormality. A review of the record shows that the Veteran receives regular treatment at a VA Medical Center for various disabilities, to include follow-up treatment for his prostate cancer. The VA Medical Center treatment notes of record show that the Veteran reports an inability to achieve an erection; however, there is absolutely no indication from the VA Medical Center treatment notes of record that the Veteran has a penis deformity of any kind, external or internal. Moreover, while the Veteran and his wife have discussed his problems with achieving an erection, neither has asserted that he has any kind of penis deformity. Indeed, the record does not reflect any assertion that the Veteran has any penis deformity. The Board finds that the Veteran is not entitled to a compensable rating for erectile dysfunction. In this regard, the Board notes that while it is clearly established that the Veteran has erectile dysfunction, the evidence does not show that he has any sort of penis deformity, either internally or externally. Therefore, a compensable rating for erectile dysfunction is not warranted, and the claim must be denied. 38 C.F.R. § 4.115b, Diagnostic Code 7522. L. STEPANICK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Cannaday, 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.