Citation Nr: 21008736 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-38 942 DATE: February 17, 2021 ORDER Entitlement to an initial compensable rating for erectile dysfunction is denied. Entitlement to an initial rating greater than 10 percent, prior to December 31, 2019, for left lower extremity sciatica, is denied. Entitlement to an initial rating greater than 10 percent, prior to December 31, 2019, for right lower extremity sciatica, is denied. Entitlement to a disability rating greater than 20 percent, from December 31, 2019, for left lower extremity sciatica, is denied. Entitlement to a disability rating greater than 20 percent, from December 31, 2019, for right lower extremity sciatica, is denied. FINDINGS OF FACT 1. The evidence does not establish that the Veteran has a penile deformity. 2. Prior to December 31, 2019, the evidence shows that the Veteran’s left and right lower extremity sciatica more closely approximated mild, and not moderate, incomplete paralysis of the sciatic nerve. 3. From December 31, 2019, the evidence shows that the Veteran’s left and right lower extremity sciatica more closely approximates moderate incomplete paralysis of the sciatic nerve, but does not more nearly approximate moderately severe or severe incomplete paralysis, or complete paralysis. CONCLUSIONS OF LAW 1. 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. 2. The criteria for an initial rating greater than 10 percent, prior to December 31, 2019, for left lower extremity sciatica, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b), 4.1-4.7, 4.10, 4.21, 4.124, DC 8520. 3. The criteria for an initial rating greater than 10 percent, prior to December 31, 2019, for right lower extremity sciatica, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b), 4.1-4.7, 4.10, 4.21, 4.124, DC 8520. 4. The criteria for a disability rating greater than 20 percent, from December 31, 2019, for left lower extremity sciatica, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b), 4.1-4.7, 4.10, 4.21, 4.124, DC 8520. 5. The criteria for a disability rating greater than 20 percent, from December 31, 2019, for right lower extremity sciatica, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b), 4.1-4.7, 4.10, 4.21, 4.124, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1971 to July 1975. This appeal to the Board of Veterans’ Appeals (Board) arose from a May 2013 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 March 3, 2011 and also granted service connection for left and right lower extremity sciatica, assigning each disability a 10 percent rating, effective March 3, 2011. The Veteran timely appealed the assigned ratings. In December 2018, the Board remanded the claims on appeal to the agency of original jurisdiction (AOJ) for additional development. After accomplishing further action, the RO granted a 20 percent rating for the bilateral lower extremity sciatica disabilities, effective December 31, 2019, but denied an initial rating greater than 10 percent prior to that date. The RO also continued to deny an initial compensable rating for the Veteran’s erectile dysfunction. See February 2020 supplemental statement of the case (SSOC). In December 2020, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. As the Veteran has not been assigned the maximum rating assignable for his bilateral lower extremity sciatica disabilities before or after December 31, 2019, which he is presumed to seek, the Board has now characterized the appeal as encompassing claims for a higher rating at each stage. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased ratings, generally 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. 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 “staged” ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an initial compensable rating for erectile dysfunction Under 38 C.F.R. § 4.115 (b), DC 7522, deformity of the penis with loss of erectile power warrants a 20 percent evaluation. "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. Dorland's Illustrated Medical Dictionary 478 (32nd ed. 2012). The Court recently clarified that the contemplated deformity may be internal, as well as external. Williams v. Wilkie, No. 16-3252 (Vet. App. Aug. 7, 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 with loss of erectile power. Here, the credible evidence of record does not establish the presence of deformity. In June 2015, the Veteran underwent VA examination, where the Veteran’s erectile dysfunction diagnosis was noted. The Veteran’s reported symptoms included some pain in the area, no sexual desire, and no erection. The Veteran’s treatment plan included taking Flomax and Levitra as needed. The Veteran was able to achieve an erection sufficient for penetration and ejaculation. The examiner remarked that the Veteran had voiding dysfunction, which did not cause urine leakage. The voiding dysfunction caused increased urinary frequency (daytime voiding interval was between two to three hours; he was also awakening to void three to four times per night). No retrograde ejaculation, history of chronic epididymitis, epididymo-orchitis, or prostatitis were present. The Veteran’s penis was not examined per the Veteran’s request and the Veteran reported normal anatomy with no penile deformity or abnormality. In December 2019, the Veteran underwent VA examination. The examiner noted the Veteran’s erectile dysfunction, which he said began in 1999. The Veteran was unable to maintain an erection or initiate an erection without Levitra even if he desired to have a sexual relationship. The examiner noted that the Veteran was unable to achieve erection sufficient for penetration and ejaculation even when he took medications. The Veteran did not have an orchiectomy, and did not have any renal dysfunction due to his condition. The examiner remarked that the Veteran had voiding dysfunction, which did not cause urine leakage. The voiding dysfunction caused increased urinary frequency (daytime voiding interval was between two to three hours; he was also awakening to void three to four times per night). The Veteran’s voiding dysfunction did not cause any signs or symptoms of obstructed voiding; no retrograde ejaculation, history of chronic epididymitis, epididymo-orchitis or prostatitis were present. The Veteran’s penis was not examined per the Veteran’s request and the Veteran reported normal anatomy with no penile deformity or abnormality. At his Board hearing, the Veteran testified that he cannot maintain an erection, and that he has not experienced sexual intercourse in about five years. The Veteran acknowledged that he does not have any deformity. See December 2020 Board hearing, p. 8. The evidence of record, including the Veteran’s written and oral assertions, do not indicate any penile deformity or abnormality. The Board acknowledges the symptoms of the Veteran’s voiding dysfunction; however, in a July 2015 rating decision, the Veteran was awarded service connection for voiding dysfunction and assigned a 20 percent disability rating, effective June 16, 2015. The Veteran has not expressed his disagreement with the assigned rating, and thus that issue is not before the Board. Moreover, 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 and ejaculate sperm is contemplated by his receipt of special monthly compensation (SMC K-1) based upon loss of use of a creative organ. 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. 2. Entitlement to higher ratings for left and right lower extremity sciatica The Veteran’s service-connected left lower extremity sciatica and right lower extremity sciatica are evaluated at 10 percent disabling prior to December 31, 2019 and 20 percent disabling thereafter under 38 C.F.R. § 4.124a, DC 8520. Diseases affecting the nerves are rated on the basis of degree of paralysis, neuritis, or neuralgia under 38 C.F.R. § 4.124a. Paralysis of the sciatic nerve, such as that caused by sciatica, is rated under DC 8520. Under DC 8520, a maximum schedular rating of 80 percent is awarded for complete paralysis of the sciatic nerve. With complete paralysis, the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. When there is incomplete paralysis, a 60 percent rating is in order for severe disability with marked muscular atrophy. Moderately severe incomplete paralysis warrants a 40 percent evaluation, and moderate incomplete paralysis warrants a 20 percent rating. Finally, mild incomplete paralysis warrants a 10 percent rating. See 38 C.F.R. § 4.124a, DC 8520. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. The words “mild,” “moderate,” and “severe” are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” See 38 C.F.R. § 4.6. The term “incomplete paralysis,” with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration. Turning to the evidence of record, the report of the September 2011 VA examination notes the Veteran’s left and right lower extremity sciatica disabilities. The examiner remarked that peripheral nerve examination revealed neuritis. There was also sensory dysfunction demonstrated by reduced sensation in L4, L5, S1 dermatomal distribution pattern in bilateral legs and feet in lower extremities. He stated that there is no motor dysfunction or any neurological problems, and the sciatica diagnosis is due to his intervertebral disc syndrome (IVDS). In the report of the June 2015 VA examination, the Veteran’s left and right lower extremity sciatica diagnoses were noted. The Veteran’s reported medical history described sharp pain, but no motor or sensory loss. Despite the noted peripheral nerve condition, the examiner commented that the Veteran did not display any symptoms of his lower extremity sciatica upon examination. The Veteran did not display any other symptoms attributable to his condition. Muscle strength testing was revealed to be normal throughout, and no muscle atrophy was revealed. The Veteran’s sensory examination also yielded normal results, and his gait was normal. Regarding his bilateral sciatic nerves, incomplete paralysis was noted, which was described as mild in severity. In the report of the December 2019 VA examination, the Veteran’s left and right lower extremity sciatica diagnoses were noted. Regarding symptoms, constant pain and numbness were revealed to be mild in his lower extremities, bilaterally. Intermediate pain and paresthesias and/or dysesthesias were revealed to be moderate in his lower extremities, bilaterally. No other symptoms were noted. Muscle strength testing ranged from active movement against some resistance (4/5) and normal strength (5/5); there was no evidence of muscle atrophy. Regarding reflexes, his biceps, triceps, and brachioradiales were normal, bilaterally; his knee and ankle were hypoactive, bilaterally. The sensory examination results indicate normal shoulder area, inner/outer forearm, hand/fingers, and upper anterior thigh, bilaterally; his thigh/knee, lower leg/ankle, and foot/toes were decreased, bilaterally. The Veteran’s gait was normal, as were his radial, median, musculocutaneous, circumflex and long thoracic nerves, bilaterally. The examiner indicated that the Veteran’s sciatic nerve was noted for complete paralysis, bilaterally. His external popliteal and anterior tibial were noted as normal, bilaterally, while his musculocutaneous nerve and interior tibial were revealed to have incomplete paralysis with moderate severity, bilaterally. Subsequent clarification was requested in January 2020 and provided by a VA examiner later that month. The author of that VA medical addendum opinion stated that the Veteran’s sciatic nerve was in fact incomplete paralysis with moderate severity, bilaterally. The Board finds that entitlement to an initial rating greater than 10 percent, prior to December 31, 2019, for his right and left lower extremity sciatica disabilities are not warranted. For the period prior to December 31, 2019, the competent medical evidence of record shows that the Veteran’s bilateral lower extremity sciatica disabilities were manifested by incomplete paralysis, which were mild in severity. While the Veteran complained of pain radiating to the lower extremities, sensory and motor examinations were consistently normal. The Board finds that such impairment is not of a degree approximating moderate incomplete paralysis. The Board also finds that entitlement to a rating greater than 20 percent from December 31, 2019, for his right and left lower extremity sciatica disabilities are not warranted. For the period since December 31, 2019, the competent medical evidence of record shows that the Veteran’s bilateral lower extremity sciatica disabilities were manifested by incomplete paralysis, which has been moderate in severity. The VA examination and addendum opinion indicate that the symptoms associated with his lower extremity sciatica were noted to be, at most, moderate in severity. While the December 2019 report of the VA examination indicated that the Veteran’s sciatic nerve had complete paralysis, this notation appears to be in error. The author of the January 2020 VA addendum opinion clarified that the Veteran’s impairment due to his bilateral lower extremity sciatica more closely approximated incomplete paralysis, which was moderate in severity. The Board affords the January 2020 VA examiner’s opinion greater probative weight, as it is consistent with the medical record- to include the December 2020 VA examination report-which shows symptoms, which at worst, were moderate in severity. The Board also finds that the evidence does not more nearly approximate moderately severe or severe incomplete paralysis of the Veteran’s lower extremities and the evidence was not approximately evenly balanced on this point at any time during the appeal period. Although there were abnormal findings of decreased sensations, as well as reports of numbness and pain, there was no evidence of muscle atrophy or foot drop. Accordingly, it cannot be said that the nature and severity of the abnormalities more nearly approximated moderately severe or severe incomplete paralysis or that the evidence is in relative equipoise on this point. For the foregoing reasons, the preponderance of the evidence is against an initial rating higher than 10 percent prior to December 31, 2019 and a rating higher than 20 percent thereafter for the Veteran’s left and right lower extremity sciatica disabilities. The benefit of the doubt doctrine is therefore not for application and the claims for higher ratings for these disabilities 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.