Citation Nr: 21024843 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 15-01 067 DATE: April 26, 2021 ORDER Entitlement to an initial compensable rating for erectile dysfunction is denied. REMANDED Entitlement to service connection for chronic otitis is remanded. Entitlement to service connection for septoplasty is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for a genitourinary disability, to include residuals other than erectile dysfunction from an in-service venereal disease is remanded.   FINDING OF FACT The Veteran’s loss of erectile power is not accompanied by a penile deformity. CONCLUSION OF LAW The criteria for a compensable rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115(b); Diagnostic Code (DC) 7599-7522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from November 1972 to November 1975. In March 2017, the Veteran testified before the undersigned Veterans Law Judge in a Video Conference Board Hearing. A transcript of that hearing is of record. This matter was remanded in April 2017 and August 2019 for further development. In 2019, the Board remanded the issue of initial compensable rating for erectile dysfunction herein for the issuance of a statement of the case (SOC) and to allow the Veteran the opportunity to perfect an appeal so as to confer jurisdiction of the appeal to the Board. Manlincon v. West, 12 Vet. App. 238 (1999). The RO issued a SOC in October 2019 and the Veteran perfected his appeal for this issue in November 2019. Therefore, this issue is properly before the Board for adjudication on the merits. 1. Entitlement to an initial compensable rating for erectile dysfunction. Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119(1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran’s erectile dysfunction is rated under DCs 7599-7522. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27. Use of the second DC helps provide further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Id; see Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006). Additionally, the DC following the hyphen is the DC by which the disability is evaluated. DC 7522 assigns a 20 percent rating for deformity of the penis with loss of erectile power. The Veteran is not entitled to an initial compensable rating for erectile dysfunction. The evidence, including a October 2017 VA examination report, indicates loss of erectile power, but fails to show penile deformity. Normal external genitalia were noted with no indication of deformity. Treatment medical records similarly do not show evidence to the contrary. The Board has considered whether the Veteran’s disability warrants a higher rating under any other DC, but determined that none are applicable. Full consideration has been given to the lay evidence of record, including the Veteran’s belief that a higher rating is warranted as a result of his purported development of prostate cancer. The Veteran’s claimed prostate disability is a separate issue that has been referred to the RO for initial adjudication. That said, in the absence of evidence of penile deformity, an initial compensable rating is not warranted. In summary, as the record is negative for a penile deformity, entitlement to an initial compensable rating is not warranted for any portion of the period on appeal. The Board emphasizes that the Veteran is already in receipt of special monthly compensation for loss of use of a creative organ for the entire period on appeal. As such, he is receiving compensation for his inability to obtain and/or sustain an erection. REASONS FOR REMAND 1. Entitlement to service connection for chronic otitis. 2. Entitlement to service connection for septoplasty. 3. Entitlement to service connection for GERD. 4. Entitlement to service connection for a genitourinary disability other than erectile dysfunction. In the 2017 and 2019 Remands, the Board specified that service treatment records (STRs) previously in evidence were no longer associated with the claims file. The RO was directed to obtain copies of these missing STRs and/or to generate a formal finding of unavailability if the records were determined to be unavailable. The RO was also instructed to obtain an addendum opinion as to the nature of the Veteran’s GERD. The Board specified that the opinion should be obtained only after the RO either located the missing STRs or generated a formal finding as to their unavailability so that the examiner could be fully appraised of the Veteran’s medical history. No additional STRs were associated with the claims file. A formal finding of unavailability as to the Veteran’s STRs was not made. Instead, the RO made a February 2021 formal determination that the Veteran’s service personnel records were unavailable. This finding fails to speak to the specific instructions of the Board. Such renders the report of a May 2019 VA examination because the RO obtained a VA examination opinion without either obtaining the missing STRs or making a formal determination of unavailability. Problematically, the May 2019 VA examiner specifically relied upon the lack of service treatment records as the basis for denying the Veteran’s claim. Per the Court in Stegall, a Board remand confers a right on a claimant to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). As the RO did not comply with the Board’s instructions, a remand is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s service treatment records. If the Veteran’s service treatment records are not available in whole or in part, the AOJ must make a formal determination that the records are unavailable and associate that determination with the Veteran’s claims file. If such a determination is made, the Veteran must be made aware of it and given an opportunity to respond or submit additional evidence. 2. Only after obtaining the missing STRs or making a formal determination of unavailability, should the RO forward the claims file to an appropriate VA examiner to provide an addendum opinion as to the nature and etiology of the Veteran’s GERD. The examiner must opine on whether GERD is at least as likely as not related to an in-service injury, event, or disease including the Veteran’s venereal disease. In providing a rationale for the opinion rendered, the examiner must address the Veteran’s reports and testimony regarding his gastrointestinal difficulty during active service. If the Veteran’s service treatment records are not available in whole or in part, the examiner should be advised of such by providing him or her with a copy of the formal finding of unavailability. The examiner should also be advised that the unavailability of the STRs can not serve as the sole basis for providing a negative opinion. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. L. Burroughs, 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.