Citation Nr: 21073817 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 19-32 931 DATE: December 10, 2021 ORDER Entitlement to an increased (compensable) disability rating for erectile dysfunction is denied. FINDING OF FACT The Veteran has erectile dysfunction, but it is less likely than not that his penile deformity is related to his service-connected erectile dysfunction. CONCLUSION OF LAW The criteria for an increased (compensable) disability rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to February 1970. This case comes to the Board from a July 2018 decision of the Agency of Original Jurisdiction (AOJ), which denied an increased (compensable) disability rating for erectile dysfunction. In his substantive appeal (VA Form 9), the Veteran requested the opportunity to testify at a videoconference hearing. In August 2021, he seemed to withdraw his request to a hearing, writing, "I am 100% disabled, so there is no need for a hearing." But the service organization which acts as his representative filed a subsequent written argument which mentions that the Veteran's hearing request without mentioning the August 2021 note quoted above. To clarify these potentially conflicting statements, the Board wrote to the Veteran in October 2021. This letter explained the Veteran's right to a hearing and informed him that, unless he responded within 30 days, the Board would adjudicate this case based on the evidence in the record. More than 30 days have passed, and the Veteran has not responded to the letter. Under these circumstances, the Board finds that the Veteran has withdrawn his hearing request and, therefore, this case can proceed without a hearing. Increased Rating for Erectile Dysfunction Disability ratings are determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board may consider whether separate ratings may be assigned for separate periods of time, a practice known as "staged ratings," whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's erectile dysfunction is evaluated under 38 C.F.R. § 4.115b Diagnostic Code (DC) 7522, which authorizes a 20 percent rating for a deformity of the penis with loss of erectile power. Id. The rating schedule authorizes the assignment of a zero percent (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 footnote to DC 7522 indicates that claims for penis deformities should be reviewed for entitlement to Special Monthly Compensation (SMC). See 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(k). SMC is payable for anatomical loss or loss of use of a creative organ. Id. In May 2017, the AOJ issued a decision granting service-connected compensation for prostate cancer and for erectile dysfunction, assigning a 100 percent rating for prostate cancer and an initial zero percent rating for erectile dysfunction. The AOJ also granted special monthly compensation for loss of use of a creative organ pursuant to 38 C.F.R. § 3.350(a). The decision explained that the Veteran was entitled to compensation for prostate cancer because, due to his service in Vietnam, he was presumed to have been exposed to herbicide agents. See 38 C.F.R. § 3.307, 3.309. The AOJ granted service connection for erectile dysfunction based on its finding that erectile dysfunction was the secondary result of the Veteran's service-connected prostate cancer. See 38 C.F.R. § 3.310. After a follow-up examination concerning his prostate cancer, the AOJ issued the decision in this case, dated July 2018, which included a proposal to decrease his prostate cancer rating from 100 percent to 40 percent. The decision continued a zero percent rating for erectile dysfunction. As noted, the Veteran appealed the second ruling to the Board. In April 2019 the AOJ implemented the rating reduction for prostate cancer. It seems that the reason, in his most recent note, the Veteran described himself as "100% disabled" is that, in January 2020, the AOJ granted a separate 100 percent rating for pulmonary vascular disease (claimed as pulmonary hypertension), after finding that this condition was another complication of his service-connected prostate cancer. The Board provides this information as background to facilitate the reader's understanding of this claim. Neither the April 2019 nor the January 2020 decisions are part of this appeal. The notice of disagreement indicates that the Veteran believes he is entitled to a 20 percent rating for erectile dysfunction. In support of this argument, he submitted records from a urologist in private practice, dated March 2014, which indicate that the Veteran complained "of curvature of the penis which has been present several months. The direction of the curvature is up. He rates the curvature severity as moderate. There is no history of injury to the penis. There is no pain with erection. He can penetrate the vagina. He is able to complete intercourse." The diagnostic impression was Peyronie's disease. VA treatment records, dated September 2018, indicate both that erectile dysfunction and Peyronie's disease were present and described the second condition as a kind of penile deformity. The AOJ arranged a male reproductive examination in March 2019. The examiner's report mentions diagnoses of erectile dysfunction since 2017 and deformity of the penis e.g. Peyronie's in 2014. According to section VII of the report ("Physical Exam"), the penis, testes, and epididymis were all normal. In other words, the examiner found that Peyronie's disease was not present on the day of the examination. The evidence that there was no penile deformity at that time does not necessarily require the denial of the Veteran's claim for an increased rating, though it might suggest the appropriateness of a staged rating. For example, if Peyronie's disease is a symptom of the Veteran's service-connected erectile dysfunction, he could be entitled to a 20 percent rating for the times during the appeal period in which that condition has been present. Under these circumstances, the AOJ appropriately sought an opinion from the March 2019 examiner about Peyronie's disease. The examiner discussed the private urologist's records, noting that the Veteran had been diagnosed with Peyronie's disease in 2014 and that those records indicated that, at that time, he could still complete sexual intercourse. The examiner wrote that the medical community does not know the precise causes of Peyronie's disease, but there was no information in the relevant medical literature suggesting that prostate cancer was a likely cause. In the examiner's opinion, it was less likely than not that Peyronie's disease was related to the Veteran's prostate cancer and associated erectile dysfunction. To support this conclusion, the examiner explained that the Veteran's erectile dysfunction was a residual complication of his 2017 prostate cancer surgery. On the issue of whether the Veteran's Peyronie's disease is related to his erectile dysfunction and associated prostate cancer, the Board finds that the most persuasive available evidence is the March 2019 VA examiner's opinion. The examiner's conclusion is consistent with the available medical records and appears to accurately reflect the sequence in which the Veteran developed the relevant symptoms. Two facts in particular favor the examiner's opinion that Peyronie's disease is unrelated to the service-connected erectile dysfunction. First, the Veteran had Peyronie's disease in 2014, before he first developed erectile dysfunction. The fact that Peyronie's disease existed first, and in the absence of erectile dysfunction, suggests that it is not a symptom of erectile dysfunction. Secondly, the examiner identified the cause of the Veteran's erectile dysfunction as the Veteran's 2017 prostate cancer surgery. None of the Veteran's statements and, indeed, none of the other medical or other evidence suggests that Peyronie's disease was related to prostate cancer or related to that surgery. For these reasons, the Board finds that, although the Veteran may have experienced a deformity of the penis at certain times during the relevant appeal period, that deformity is not related to his service-connected erectile dysfunction. Because the Veteran's service-connected erectile dysfunction is not associated with a deformity of the penis with loss of erectile power, he is not entitled to a 20 percent rating under DC 7522. As noted, the AOJ has already granted special monthly compensation for the loss of use of a creative organ pursuant to 38 C.F.R. § 3.350(a). There is no other provision of the code that would afford a compensable evaluation for his erectile dysfunction under these circumstances. Because the preponderance of evidence is against the claim, the benefit-of-the doubt doctrine does not apply, and the claim for a compensable rating for erectile dysfunction must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.