Citation Nr: 21074555 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-30 630 DATE: December 15, 2021 ORDER Entitlement to an initial disability rating in excess of 20 percent for erectile dysfunction with scar ventral penile surface (ED) is denied. Entitlement to a 10 percent disability rating based upon multiple non-compensable service-connected disabilities is denied. REMANDED Entitlement to an increased initial disability rating for service-connected total reconstruction of urinary tract due to urethral stricture disease (USD), currently rated at: 10 percent prior to May 1, 2008; 20 percent from May 1, 2008, to February 28, 2013; noncompensable from March 1, 2013, to January 30, 2019; and 20 percent thereafter, is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's service-connected ED was assigned a 20 percent evaluation, which is the maximum evaluation authorized under Diagnostic Code (DC) 7522; he was also in receipt of special monthly compensation pursuant to 38 U.S.C. § 1114(k). 2. There is no legal entitlement to a 10 percent rating for multiple noncompensable service-connected disabilities; throughout the period on appeal, the Veteran has been in receipt of a compensable rating. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for service-connected ED have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.115b, DC 7522. 2. The criteria for a rating of 10 percent for multiple noncompensable service-connected disabilities have not been met. 38 C.F.R. § 3.324. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Prior to discussing the appeal at hand, the Board would be remiss if it did not recognize the Veteran's outstanding service. The Veteran, who served on active duty from January 1972 to January 1974, was clearly a credit to the United States Army, and his service to our country is greatly appreciated. Unfortunately, the Veteran passed away in November 2019, during the pendency of this appeal. The Appellant, his surviving spouse, has been found to be eligible as the substituted claimant in the Veteran's appeal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded by the Board in December 2018 and May 2021. Increased Rating Disability ratings are determined by applying the criteria set forth in 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. Where a claimant timely appeals the rating initially assigned for the service-connected disability, VA must consider whether the claimant is entitled to "staged" ratings to compensate them for times since filing the claim when their disability may have been more severe than at other times during the course of the appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. Factual and Procedural Background. In July 2007, the Veteran submitted a claim of entitlement to service connection for USD. See July 2007 VA Form 21-526. In a July 2008 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran's claim. Thereafter, in September 2008, the Veteran submitted a Notice of Disagreement (NOD) as to the July 2008 rating decision. The appeal was ultimately perfected. In a June 2011 decision, the Board remanded the issue of entitlement to service connection for USD for additional development. In a February 2012 rating decision, the AOJ denied service connection for ED. Following the issuance of a February 2020 Supplemental Statement of the Case (SSOC), and a September 2012 Statement of the Case (SOC), the matters were returned to the Board. In a January 2013 decision, the Board granted service connection for USD and ED. In a May 2013 rating decision implementing the January 2013 Board decision, the AOJ assigned a noncompensable rating for the Veteran's service-connected ED, effective July 2, 2017. The AOJ also assigned staged ratings for the Veteran's service-connected USD, consisting of 10 percent, effective July 2, 2007; 20 percent, effective May 1, 2008; and noncompensable, effective March 1, 2013. Additionally, the AOJ granted entitlement to special monthly compensation (SMC) based on loss of use of a creative organ, and denied entitlement to a 10 percent rating based on multiple noncompensable service-connected disabilities. Thereafter, in June 2013, the Veteran submitted a NOD as to the initial ratings assigned for his service-connected USD and ED, and the denial of entitlement to a 10 percent rating based on multiple noncompensable service-connected disabilities. This appeal was ultimately perfected. In July 2021, a VA opinion was obtained in which the examiner noted the Veteran's USD manifested with a slow/weak urinary stream, ED, and a penile scar. The examiner also noted that the Veteran did not have difficulties with urinary frequency between January 2007 and November 2019. The examiner further noted that the Veteran's penile scar constituted a penile deformity. See July 2021 VA Medical Opinion DBQ. In an August 2021 rating decision, the AOJ granted an initial rating of 20 percent for the Veteran's service-connected ED, effective from July 2, 2007. Analysis. 1. Entitlement to an initial disability rating in excess of 20 percent for service-connected ED is denied. Upon review of the Veteran's entire history, the Board concludes that the preponderance of the evidence is against a disability rating in excess of 20 percent at any time during the period on appeal for the Veteran's service-connected ED. Importantly, as this is an appeal as to the initial rating assigned, the relevant temporal focus is from July 2, 2007 to November 28, 2019, the date of the Veteran's death. As noted above, in an August 2021 rating decision, the AOJ granted an initial rating of 20 percent for the Veteran's service-connected ED from the date of service connection. This rating was assigned pursuant to DC 7522, which compensates based on deformity of the penis with loss of erectile power. Under the applicable rating criteria, a maximum 20 percent rating is assigned when there is deformity of the penis with loss of erectile power. This is the maximum schedular rating allowed under DC 7522. See 48 C.F.R. § 4.115b, DC 7522. As there is no legal basis upon which to award a schedular evaluation in excess of 20 percent, the claim for an increased schedular rating must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board has also considered whether any other diagnostic criteria could support a higher rating, but finds that it cannot. Specifically, the rating schedule does not provide a DC for rating erectile dysfunction on its own, but rather such impairment is compensated by special monthly compensation (SMC) at the statutory rate for loss of use of a creative organ, pursuant to 38 U.S.C. § 1114(k). Here, the Veteran was already in receipt of SMC(k) throughout the appeal period and, therefore, an increase based on entitlement to SMC due to erectile dysfunction is not available. In sum, throughout the appeal period, the Veteran was in receipt of the maximum schedular rating available for deformity of the penis associated with erectile dysfunction. A higher schedular rating is not available, neither is any increased rating available based on SMC. As such, the Board must deny the claim. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a 10 percent rating based upon multiple non-compensable service-connected disabilities is denied. Upon review of the Veteran's entire history, the Board concludes that the preponderance of the evidence is against a finding of entitlement to a 10 percent rating based upon multiple non-compensable service-connected disabilities. Importantly, the relevant temporal focus is from July 2, 2007, the date of award of service-connection, to November 28, 2019, the date of his death. When a veteran suffers from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the Schedule for Rating Disabilities, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. See 38 C.F.R. § 3.324. The provisions of § 3.324 are predicated on the existence solely of noncompensable service-connected disabilities. Therefore, once a compensable evaluation for any service-connected disability is awarded, § 3.324 is inapplicable. See Butts v. Brown, 5 Vet. App. 532, 541 (1993). Here, as discussed above, in an August 2021 rating decision, the AOJ granted an initial rating of 20 percent for the Veteran's service-connected ED. As a result, the Veteran has a service-connected disability that has been assigned a compensable rating throughout the applicable appeal period. As such, the issue of compensation under 38 C.F.R. § 3.324 is moot and must be denied as a matter of law. See Butts v. Brown, supra; Sabonis v. Brown, supra. REASONS FOR REMAND 1. Entitlement to an initial rating for service-connected USD, in excess of 10 percent prior to May 1, 2008; 20 percent from May 1, 2008, to February 28, 2013; noncompensable from March 1, 2013, to January 30, 2019; and 20 percent thereafter, is remanded. The Board regrets the delay associated with this remand, particularly as this matter is the subject of two prior remands. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the AOJ has not substantially complied with the May 2021 remand directives. See Stegall v. West, 11 Vet. App. 258, 271 (1998). Specifically, in May 2021, the Board instructed the AOJ to obtain a VA opinion regarding the severity of the Veteran's service-connected USD. As part of this examination, the examiner was instructed to determine the Veteran's voiding interval from January 2007 to November 2019. In July 2021, a VA opinion was obtained in which the physician opined that the Veteran did not experience difficulties with urinary frequency from January 2007 through November 2019. In support of this opinion, the physician noted that the April 2016 VA examination demonstrated no presence of urinary frequency. See July 2021 VA Medical Opinion Disability Benefits Questionnaire (DBQ). However, in a June 2013 statement, the Veteran reported experiencing a daytime voiding interval of one to two hours and that he awakened to void three to four times per night. See June 2013 Affidavit. Additionally, the Veteran's medical records contain complaints regarding urinary frequency and nocturia in 2007 and 2018. See Our Lady of the Lake Regional Medical Center (RMC) records, received August 2007; Dr. Grissom records, received May 2008; New Orleans VA Medical Center (VAMC) records, received July 2021 in CAPRI. Moreover, VA examinations in May 2008 and January 2019 both noted that the Veteran experienced difficulties with urinary frequency, including nocturia three to four times per night. See May 2008 VA Genitourinary Examination; January 2019 VA Urinary Tract Conditions DBQ, received February 2019. As such, the July 2021 opinion appears to be based on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, 4 Vet. App. 458 (1993). Further, an opinion is inadequate when, as indicated here, the examiner does not consider the Veteran's prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As the Board cannot find substantial compliance with the May 2021 remand directives, a remand is necessary to obtain an opinion regarding the severity of the Veteran's service-connected USD. Lastly, the Board notes that the record indicates there may be relevant private records that are not associated with the claims file. Specifically, the record indicates that the Veteran received treatment for his USD from Our Lady of the Lake RMC, Dr. Grissom, and Dr. Wilks. However, no records relating to treatment from Dr. Wilks have been associated with the claims file, and only excerpts of records relating to treatment from Our Lady of the Lake RMC and Dr. Grissom have been associated with the claims file, and none since 2008. See Our Lady of the Lake RMC records; Dr. Grissom records; New Orleans VAMC records. The Board also notes that, in May 2021, the AOJ requested that the Appellant provide the names, addresses, and approximate dates of treatment of all medical care providers that provided the Veteran with treatment for his USD. The AOJ also provided the Appellant and her representative with a VA Form 21-4142, Authorization to Disclose Information, and VA Form 21-4142a, General Release for Medical Provider Information, to allow the AOJ to obtain the Veteran's medical records on her behalf. See May 2021 VA Correspondence. In August 2021, the Appellant's representative reported that medical records had been requested and asked for an additional 30 days to obtain such records. See August 2021 Correspondence. To date, no additional private medical records have been associated with the claims file. VA's duty to assist is not a "one-way street", and a claimant seeking help cannot passively wait for it in those circumstances where they may or should have information that is essential in obtaining pertinent evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Nonetheless, as a remand of this matter is otherwise warranted, the Board finds that the AOJ should make one more attempt to identify and obtain any pertinent medical records. The Appellant is cautioned that failure to cooperate with any requested development may result in the denial of her claim. 38 C.F.R. § 3.655. Accordingly, the matter is REMANDED for the following action: 1. With the Appellant's assistance as appropriate, obtain and associate with the electronic claims file any outstanding pertinent medical records, including records relating to treatment from Our Lady of the Water Regional Medical Center, Dr. R.T. Grissom, and Dr. G. Wilks. Pursuant to 38 C.F.R. § 3.159(c), any efforts to secure these records MUST be documented in the electronic claims file, and the Appellant MUST be informed if any records are unavailable to be secured. 2. After completing the development above, and any additional development warranted by the record, obtain an opinion from an appropriate clinician, preferably one specializing in urology, regarding the nature and severity of the Veteran's service-connected USD. The entire claims file must be provided to, and reviewed by, the examiner. The examiner is asked to: (a.) Provide a full description of the Veteran's USD from July 2007 through November 2019, and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (b.) With respect to urinary frequency, to the extent possible, provide an opinion as to the Veteran's daytime voiding interval and frequency of nocturia from July 2007 through November 2019. (c.) In formulating the requested opinions, the examiner is instructed to consider and specifically address: i. The Veteran's private and VA medical records indicating reports of difficulty with voiding frequency and nocturia; ii. VA examinations conducted in May 2008 and January 2019; and iii. The Veteran's June 2013 affidavit, reporting difficulty with voiding frequency and nocturia. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran was competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to specific opinions requested, it must be returned to the providing examiner for corrective action. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, Associate 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.