Citation Nr: 21006781 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 19-33 310 DATE: February 5, 2021 ORDER Entitlement to an initial compensable rating for erectile dysfunction (ED) is denied. FINDING OF FACT The Veteran's service-connected ED is not manifested by a penile deformity and is currently compensated with a separate award of special monthly compensation (SMC) for loss of use of a creative organ. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for the service-connected ED have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 4.3, 4.7, 4.14, 4.115(b), Diagnostic Code (DC) 7522 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from September 1969 to September 1971. As it relates to the claim for an increased (compensable) disability evaluation for erectile dysfunction, the Board notes that service connection for erectile dysfunction was granted as a residual of the Veteran’s service-connected prostate cancer and assigned a noncompensable disability evaluation. This matter was previously before the Board in June 2020, at which time it was remanded for additional development, to include a VA examination. The requested development has been completed and the matter is ready for appellate review. 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. See 38 U.S.C. § 5107(b). When the current appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under DC 7522, the only schedular evaluation available for ED is a 20 percent rating for a deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b, DC 7522. This is a conjunctive set of criteria; both penile deformity and loss of erectile power must be present to warrant compensation at the 20 percent rating, in addition to the SMC already provided. In every instance where the Rating Schedule does not provide a zero percentage evaluation for a DC, a zero percent evaluation is assigned when the requirements for a compensable rating of a DC are not met. 38 C.F.R. § 4.31. As "deformity" is not defined in the rating criteria, the term is given its ordinary meaning. In medical terminology, a "deformity" is a distortion of any part or general disfigurement of the body. See Dorland's Illustrated Medical Dictionary 478 (32nd ed. 2012). The Court recently clarified that the contemplated deformity may be internal, as well as external. See Williams v. Wilkie, 30 Vet. App. 134 (2018). The Veteran currently receives a special monthly compensation (SMC) for his ED based on loss of use of a creative organ. The regulations clearly indicate that a penile deformity, in addition to loss of erectile power, must be present to warrant a compensable rating for ED under DC 7522. The Veteran contends that his service-connected ED is worse than the initial non-compensable rating that is currently assigned. He has indicated that he has both loss of erectile power and a penis deformity and should be awarded a higher evaluation based on the account of those two symptoms. At the time of an August 2020 VA examination, the examiner indicated that this was a re-evaluation of the Veteran’s service-connected erectile dysfunction. It was noted that the Veteran was a physician and was able to provide a clear and detailed history regarding his ED. He reported that he had elevated PSAs starting in 2004 that required yearly prostate biopsies and that a biopsy from 2009 had shown prostate cancer. He noted opting for active surveillance with yearly prostate biopsies until 2011 when he underwent a radical prostatectomy for treatment. The Veteran reported urinary incontinence and ED thereafter as a result of the surgery. He indicated that he tried Viagra initially for ED treatment, it was unsuccessful at achieving an adequate enough erection. He noted starting penile medication injections in 2013 for ED treatment which helped, however, this became less effective over time and he discontinued the treatment. The Veteran indicated that he was not currently using any treatment for ED at the time of the examination. He reported that the penile injections resulted in fibrosis and a slight visible 10 degree curvature of his penis when it was erect- he reported no erections in the past 4-5 years (since his penile injections became less effective). He stated that his last erection was 4-5 years ago; he had not noticed any abnormality of his penis when it was flaccid. He stated that he was unable to discern or palpate any plaque/mass on his penis at the time of the examination. The examiner indicated that the Veteran’s reported history was notable for fibrosis of his penis due to injection treatment for ED, which resulted in a noticeable visible 10 degree curvature when erect per his history; however, the Veteran had been unable to achieve an erection in the past 4-5 years (since penile injections had become less effective over time); a curvature or deformity has not been apparent in the flaccid state. The examiner indicated that a physical examination of the Veteran’s penis could not be done since this examination was triaged as a telephone appointment in light of the COVID-19 pandemic which was precluding an in-person visit (the Veteran was also agreeable to having a telephone appointment instead). The Veteran reported not being able to detect any palpable mass, plaque, or deformity on his penis at this time while in the flaccid state. Based on review of all evidence of record, the Board finds that a compensable rating for erectile dysfunction is not warranted. While the Board notes that the Veteran, who is a physician, indicated that the penile injections resulted in fibrosis and a slight visible 10 degree curvature of his penis when it was erect; he specifically indicated that he had had no erections the past 4-5 years. The Veteran also reported not being able to detect any palpable mass, plaque, or deformity on his penis while in the flaccid state. The examiner also noted that the Veteran had been unable to achieve an erection in the past 4-5 years (since penile injections had become less effective over time); therefore, a curvature or deformity had not been apparent in the flaccid state. Here, although the Veteran has loss of erectile power, the record is negative for evidence of penis deformity, which is necessary for a compensable rating under 38 C.F.R. § 4.115b, Diagnostic Code 7522. In this regard, the Veteran has indicated that he has not had a penis deformity in the past five years, which has also been reported by the examiner. As such, there is no lay or medical support for a compensable disability rating for the Veteran's erectile dysfunction under Diagnostic Code 7522. The Board has also considered the compensable evaluation of 20 percent for atrophy of both testes under Diagnostic Code 7523; however, no such findings were made in this case. See 38 C.F.R. § 4.115b. Moreover, as noted above the Veteran is already in receipt of special monthly compensation for loss of use of a creative organ. Therefore, a compensable rating for erectile dysfunction is not warranted. In sum, the weight of the credible evidence demonstrates that the Veteran is not entitled to a compensable rating for erectile dysfunction. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b). K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.