Citation Nr: 21008093 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 19-28 597 DATE: February 11, 2021 ORDER Entitlement to an initial compensable rating for erectile dysfunction is denied. FINDING OF FACT The evidence does not establish that the Veteran has a penile deformity. CONCLUSION OF LAW The criteria for an initial compensable rating for erectile dysfunction are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.115(b), Diagnostic Code (DC) 7522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1966 to October 1969, to include service in the Republic of Vietnam. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). This appeal to the Board of Veterans’ Appeals (Board) arose from a November 2017 rating decision, in which a Department of Veterans’ Affairs (VA) Regional Office (RO), inter alia, granted service connection for erectile dysfunction, assigning a noncompensable (zero percent) rating, effective July 6, 2017. The Veteran timely appealed the assigned rating. Entitlement to an initial compensable rating for erectile dysfunction 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; 38 C.F.R. § 4.1. 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. 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 entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Under 38 C.F.R. § 4.115 (b), DC 7522, deformity of the penis with loss of erectile power warrants a 20 percent evaluation. In Williams v. Wilkie, the Court of Appeals for Veterans Claims (Court) held that "deformity" under Diagnostic Code 7522 means "a distortion of the penis, either internal or external." 30 Vet. App. 134, 138 (2018). Erectile dysfunction, without deformity of the penis, is not listed in the Rating Schedule; however, when an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the function affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Here, erectile dysfunction has been analogously evaluated as noncompensable under DC 7522. 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 have not been met. 38 C.F.R. § 4.31. Under Diagnostic Code 7521, a 20 percent rating is warranted for removal of the glans of the penis. Under Diagnostic Code 7520, a 30 percent disability rating if there is removal of half or more of the penis. Initially, the Board notes that erectile dysfunction is not a “deformity,” and the (maximum) 20 percent evaluation for deformity with loss of erectile power under 38 C.F.R. § 4.115b, DC 7522 is only warranted based upon evidence of deformity (internal or external) with loss of erectile power. In the November 2017 report of VA examination, the Veteran’s erectile dysfunction was diagnosed, and the examiner stated it was secondary to his prostate cancer. The examiner noted that the Veteran was unable to achieve erection sufficient for penetration and ejaculation without medication. The Veteran did not have retrograde ejaculation. Private treatment records dated December 2017 note the Veteran’s erectile dysfunction issues, and commented that it was most likely secondary to radiation therapy. The Veteran was taking Viagra for his erectile dysfunction issues. The examiner noted that the Veteran’s penis was unremarkable, his phallus was marked as normal, and he did not demonstrate plaque or masses. In September 2018, the Veteran underwent another VA examination. The Veteran’s erectile dysfunction was noted as secondary to his radiology therapy for service-connected prostate cancer. The examiner stated that the Veteran was unable to achieve erection sufficient for penetration and ejaculation without medication. The Veteran did not have retrograde ejaculation. Here, the credible evidence of record does not establish the presence of deformity. Private treatment records note the Veteran’s penis was normal. The reports of the VA examination note the Veteran’s erectile dysfunction issues, including his inability to achieve erection sufficient for penetration and ejaculation without medication. However, they do not evidence any penile deformity. The Board acknowledges the Veteran’s assertions that he is unable to maintain an erection and he feels that “the radiation destroyed something in the penis, which caused this condition and should be considered a ‘deformity.’” See VA Form 9. While the Veteran is competent to describe his symptoms, it has not been shown that he is competent to diagnose a penile deformity. See Jandreau v. Nicholson, 492 F.3d at 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). In addition, entitlement to a higher disability rating on an extraschedular basis has been considered, however, an extraschedular rating is not warranted as the Veteran’s reported symptoms are contemplated by the applicable rating criteria. See Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In addition, the Veteran’s inability to maintain an erection is contemplated by his receipt of special monthly compensation (SMC K-1) based upon loss of use of a creative organ. (Continued on the next page)   Accordingly, the Board finds that the credible evidence does not establish that the Veteran had any penile deformity with loss of erectile power. As such, an initial compensable rating for erectile dysfunction is denied. 38 C.F.R. § 4.115b, DC 7522. As the preponderance of the evidence does not establish that the Veteran had any penile deformity with loss of erectile power, the benefit of the doubt doctrine is not for application and the claim for an initial compensable rating must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, 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.