Citation Nr: 21075385 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-44 294 DATE: December 20, 2021 ORDER Entitlement to a compensable rating for service-connected erectile dysfunction (ED) is denied. FINDING OF FACT The Veteran's ED does not manifest as a deformity of the penis. CONCLUSION OF LAW The criteria for a compensable rating for ED have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.115b, Diagnostic Code (DC) 7599-7522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1968 to March 1970. In his August 2017 Substantive Appeal, the Veteran requested a Board hearing. The requested hearing was scheduled for November 2, 2021. The Veteran did not attend the scheduled hearing, and the Veterans Appeals Control and Locator System (VACOLS) indicates that the Veteran cancelled his hearing. Also, he has not requested that his hearing be rescheduled. Under these circumstances, the Board has determined that the Veteran's request for a Board hearing has been withdrawn. 38 C.F.R. § 20.704(e). Entitlement to a compensable rating for service-connected ED 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 DCs. 38 U.S.C. § 1155; 38 C.F.R. Part IV. If two evaluations are potentially applicable, the higher evaluation 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered 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 in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). As there is no specific disability rating for ED in the VA Rating Schedule, the Veteran's service-connected disability is rated by analogy under 38 C.F.R. § 4.115b; DC 7599-7522, deformity of the penis with loss of erectile power. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Diagnostic Code 7599 is used to identify unlisted genitourinary disabilities not specifically listed in the VA Rating Schedule. See 38 C.F.R. §§ 4.20, 4.27. Diagnostic Code 7522 is used to rate deformity of the penis with loss of erectile power. In every instance where the schedule does not provide a zero percent evaluation for a DC, 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 DC 7522, the only schedular evaluation available is a 20 percent rating for a deformity of the penis with loss of erectile power. As "deformity" is not defined in the rating criteria, the term is given its ordinary meaning. See Prokarym v. McDonald, 27 Vet. App. 307, 310 (2015). In medical terminology, a "deformity" is a "distortion of any part or general disfigurement of the body." See Dorland's Illustrated Medical Dictionary 478 (32 ed. 2012). In this regard, the Board notes its reliance on a medical dictionary to define a term is appropriate. 38 C.F.R. § 20.903(b)(2) (while Board consideration of a medical treatise requires notice to the Veteran and his representative, such notice is not required if the Board uses the treatise or a medical dictionary for the limited purpose of defining a medical term and that definition is not material to the Board's disposition of the appeal). Furthermore, a "deformity" under DC 7599-7522 means either an internal or external distortion of the penis. See Williams v. Wilkie, 30 Vet. App. 134, 138 (2018). Analysis The Veteran contends that his disability is more severe than the rating depicts. In this case, a noncompensable disability rating was assigned, even though the schedule does not provide the criteria for one, because the requirements for the only compensable evaluation were not met. 38 C.F.R. § 4.31. A footnote to DC 7522 also instructs the rater to review the claim for entitlement to Special Monthly Compensation (SMC) under 38 C.F.R. § 3.350. Here, the Veteran was granted SMC for loss of use of a creative organ, effective October 29, 2010, which is the same effective date as his noncompensable evaluation for service-connected impotence. The issue is therefore whether the evidence more nearly approximates penile deformity to meet the compensable rating criteria of DCs 7599-7522. For the following reasons, a compensable rating for service-connected ED is not warranted. In August 2016, the Veteran was afforded a VA examination to determine the severity of his disability. The examiner confirmed the Veteran's ED diagnosis. The Veteran's treatment plan did not include taking continuous medication for his condition. The Veteran had not had an orchiectomy, and he had not had any renal dysfunction due to his condition. He had a voiding dysfunction that was due to his prostate cancer. He also had erectile dysfunction and was unable to achieve an erection sufficient for penetration and ejaculation without medication. The Veteran had used medications for treatment of his ED; however, he was unable to achieve an erection sufficient for penetration and ejaculation with medication. He did not have retrograde ejaculation, and he did not have a history of chronic epididymitis, epididymo-orchitis, or prostatitis. Per the Veteran's request, his penis and testes were not examined during the examination. The Veteran's male reproductive system condition did not impact his ability to work. Based on the evidence of record, the Board finds that a compensable rating is not warranted under DC 7599-7522. The Board is sympathetic to the Veteran's difficulties, but it is bound by the laws and regulations. Those laws and regulations provide a compensable disability rating for rating impotence only with deformity of the penis with loss of erectile power. Here, the Board finds that even considering the broad definition of deformity including internal or external deformity, there is no evidence of record, including medical and lay evidence, describing any physical deformity related to the Veteran's penis, either internal or external, at any time during the appeal period. The Veteran's symptoms are specifically contemplated by the footnote to DC 7522 that provides for consideration of SMC based on loss of use of a creative organ and that benefit was granted along with service connection for erectile dysfunction with the same effective date. The Board notes that the VA examiner documented voiding dysfunction; however, this voiding dysfunction is due to the Veteran's already service-connected prostate cancer. As the Veteran had not had an orchiectomy, his ED treatment plan did not include taking continuous medication, and his disability did not cause functional impairment outside that contemplated by the award of SMC for loss of use, the Board finds that there is no other potentially applicable DC that would warrant a higher rating. For the foregoing reasons, the preponderance of the evidence is against a compensable rating for ED. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 55 MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Tara-Deen 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.