Citation Nr: 21006658 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-49 369 DATE: February 4, 2021 ORDER Entitlement to a compensable rating for erectile dysfunction is denied. FINDING OF FACT The evidence of record does not indicate that the Veteran has a penis deformity. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.10, 4.20, 4.21, 4.31, 4.115b, Diagnostic Code 7522 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps (USMC) from June 1993 to June 1997. This case originally came before the Board of Veterans’ Appeals (Board) on appeal of a November 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Procedurally, in August 2019 the Board denied the issue of entitlement to a compensable rating for erectile dysfunction. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Order, the Court granted a Joint Motion of the parties, vacated the Board’s denial of entitlement to a compensable rating for erectile dysfunction, and remanded the case to the Board for further appellate action. Increased Rating – Erectile Dysfunction The Veteran contends that his erectile dysfunction warrants a compensable rating. Specifically, in his December 2015 notice of disagreement, the Veteran asserted the following: that his condition was very serious and important to him as a man, was constantly on his mind, that it had caused relationship issues, that he “can” have an orgasm while not fully erect despite medication, and that erection and testosterone supplements had been ineffective. Disability ratings are determined by applying the criteria set forth in the 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 (2018); 38 C.F.R. § 4.1 (2019). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2019). In determining the severity of a disability, the Board is required to consider 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 history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2 (2019); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran’s erectile dysfunction is currently rated under 38 C.F.R. § 4.115b, Diagnostic Code 7522. Under that diagnostic code, deformity of the penis with loss of erectile power warrants a 20 percent rating. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31 (2019). In July 2015, the Veteran was afforded a VA examination for male reproductive system conditions. At that time, the Veteran reported that he was unable to achieve an erection despite taking Viagra. He was reported to use both a testosterone patch and Viagra for treatment of his erectile dysfunction. The examiner specifically noted that the Veteran was unable to achieve an erection sufficient for penetration and ejaculation without medication, but was able to perform with medication. The Veteran declined genital examination at that time, and the examiner specifically noted that the Veteran’s penis was not examined at the request of the Veteran. The Board finds that the July 2015 VA examination is adequate for adjudication purposes. In that regard, the VA examiner accurately documented and discussed all the relevant findings pertaining to the Veteran’s erectile dysfunction. The Board acknowledges that the Veteran’s penis was not physically examined by the VA examiner; however, it was specifically noted that the Veteran declined the genital examination. As such, information that could have been derived from the physical examination of the Veteran’s penis was unavailable through no fault of VA. Therefore, the Board finds that the July 2015 VA examination report is adequate for adjudication purposes despite the lack of findings from a physical examination of the penis. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As the examination is adequate, the Board assigns it great probative weight. The Board acknowledges the June 2019 appellate brief from the Veteran’s representative implying that the Veteran declined the physical examination of his penis by the July 2015 VA examiner because she was a woman and so, he did not feel comfortable allowing such an examination. The Board does not find that argument persuasive so as to warrant a new VA examination of the Veteran. In this regard, there is no indication from the record that the July 2015 VA examiner was not completely professional in her examination of the Veteran. Further, the Veteran felt “comfortable” discussing the fact that he was unable to achieve an erection sufficient for penetration and ejaculation without the use of medication with the female VA examiner. Additionally, the Veteran has not alleged, and the evidence does not otherwise indicate, that he has deformity of his penis. Rather, the Veteran has argued that his inability to achieve an erection and orgasm is a serious disability and should be compensated at a higher rate. At no point has the Veteran reported a deformity. As such, the Board finds that a remand for a new VA examination is not warranted at this time. Also of record is a July 2015, disability benefits questionnaire (DBQ) for male reproductive organ conditions from the Veteran’s private provider. At that time, the Veteran was noted as having erectile dysfunction and receiving Cialis as part of his treatment plan. It was noted that the Veteran could not achieve an erection sufficient for penetration and ejaculation without the use of medication, but was able to perform with medication. It was noted that the Veteran’s penis was normal. However, the Board notes that other relevant information was not included in the examination report, specifically the Veteran’s testes were noted to be normal despite the fact that he has had a well-documented orchiectomy. It was also specifically noted that the Veteran had not been seen by that provider since 2010. Despite the fact that the July 2015 private DBQ findings would not support a compensable rating for erectile dysfunction, as the Veteran’s penis was noted to be normal in that report; the Board finds the report to be inadequate for adjudication purposes. In this regard, it was not based on a physical examination of the Veteran, the Veteran had not been seen by that provider since 2010, and the information could not be relied upon to be accurate as it incorrectly states other facts shown to be true regarding the Veteran’s reproductive organs. As the DBQ report is inadequate for adjudication purposes, it is on no probative value. The Board finds that the Veteran is not entitled to a compensable rating for erectile dysfunction. In this regard, there is no indication from the record that the Veteran has deformity of the penis. The Veteran has never asserted, either expressly or implicitly, that his penis has a deformity. In fact, the Veteran did not even verbally state that his penis had a deformity during the July 2015 VA examination. As such, a compensable rating is not warranted. 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2019). Consideration has also been given to assigning a staged rating. However, at no time during the period in question has the Veteran’s disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2008). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a compensable rating for erectile dysfunction is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Byrd, 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.