Citation Nr: 21032581 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-37 067 DATE: May 27, 2021 ORDER A compensable rating for erectile dysfunction is denied. FINDING OF FACT The competent evidence does not show that the Veteran's erectile dysfunction is manifested by penile deformity. CONCLUSION OF LAW The criteria for an initial compensable rating for erectile dysfunction are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.115b, Diagnostic Code 7599-7522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to September 1969. This appeal to the Board of Veterans' Appeals (Board) originated from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter has been remanded by the Board for additional development in November 2018 and June 2020. The June 2020 Board decision denied higher, staged ratings for residuals of prostate cancer, but it remanded the erectile dysfunction issue for a physical examination. VA afforded the Veteran such examination in March 2021 so there has been substantial compliance with prior Board remand directives. Entitlement to a compensable rating for erectile dysfunction Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Id. at 126-27; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). With regard to erectile dysfunction, this condition has been rated under 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7522, which pertains to deformity of the penis with loss of erectile power. This is the only diagnostic code that specifically addresses erectile function. The Board can identify no more appropriate diagnostic code and the Veteran has not identified one. Butts v. Brown, 5 Vet. App. 532 (1993). Accordingly, the Board will proceed with an analysis of the Veteran's disability under that diagnostic code. Under Diagnostic Code 7522, a single 20 percent rating is warranted where the evidence shows deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115(b), DC 7522. In Williams v. Wilkie, 30 Vet. App.134, 138 (2018), the U.S. Court of Appeals for Veterans Claims (CAVC) stated that, "[a]lthough DC 7522 requires a 'deformity' for a compensable rating, VA has not expressly defined this term." The Court defined "deformity" as a "distortion of any part or general disfigurement of the body," to include internal and external deformities. Id (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 478 (32d ed. 2012). The record reflects that the Veteran is receiving special monthly compensation (SMC) for loss of use of a creative organ from August 11, 2014. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). Where the criteria for a compensable rating under a diagnostic code are not met, and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31. An August 2014 VA examination report shows that the Veteran was assessed with erectile dysfunction. The examiner did not provide any comment as to whether the Veteran's penis and testes had any deformities. An October 2015 letter from a VA nurse, noted that the Veteran's prostate cancer had resulted in erectile dysfunction. A November 2019 VA male reproductive disability benefits questionnaire (DBQ), shows that a physical examination was not conducted to determine if the Veteran's penis and testes had any deformities. A July 2020 VA male reproductive DBQ, shows that the examination was conducted via record review and interview with the Veteran. A physical examination was not conducted. The Veteran was assessed with erectile dysfunction. The examiner noted that the Veteran was using Sildenafil with little success in sustaining an erection. The examiner noted that the Veteran was unable to achieve an active erection sufficient for penetration and ejaculation with or without medication. Retrograde ejaculation was not assessed. The examiner did not comment on the presences of deformity of the penis and testes as this exam was provided based a review of the medical records and interview with the Veteran. A March 2021 VA male reproductive DBQ, shows that the Veteran was diagnosed with erectile dysfunction as a residual of service connected prostate cancer. The examiner noted that the Veteran was unable to achieve an active erection sufficient for penetration and ejaculation with or without medication. Retrograde ejaculation was assessed. The Veteran was noted to be using Sildenafil, as needed. There was no history of orchiectomy and his did not have a history of epididymitis, epididymo-orchitis, or prostatitis. On physical examination, the penis and testes were normal with no deformity assessed. After review of the relevant competent lay and medical evidence, the Board finds that a higher rating is not warranted. The Veteran has been diagnosed with erectile dysfunction. The Veteran's VA examination reports, to include the one conducted in March 2021, of record were normal in all relevant aspects pertaining to any deformities of the penis. Additionally, the 2021 examination report reflects no history of orchiectomy, epididymitis, epididymo-orchitis, or prostatitis Where both loss of erectile power and deformity are not demonstrated, a noncompensable evaluation will be assigned. As no penile deformity has been shown, the Board finds that the Veteran is not entitled to a compensable evaluation. 38 C.F.R. § 4.31. The April 2021 brief from the Veteran's representative references urinary issues, sch as constant urination; however, the June 2020 Board decision discussed and decided this matter when addressing a higher rating for residuals of the Veteran's prostate cancer. To the extent that the brief brings up loss of use, the Veteran is in receipt of SMC(k) for loss of use of a creative organ, as noted above. Accordingly, the Board finds that the preponderance of the evidence is against the claim that the Veteran is entitled to an initial compensable evaluation for erectile dysfunction. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.