Citation Nr: 21040544 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 18-33 376 DATE: July 5, 2021 ORDER A compensable initial rating for erectile dysfunction is denied. REMANDED A compensable initial rating for residuals of prostate cancer is remanded. FINDING OF FACT The Veteran's erectile dysfunction is not more nearly manifested by penile deformity. CONCLUSION OF LAW The criteria for a compensable initial rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115b, Diagnostic Code 7522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1965 to October 1967. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. 1. A compensable initial rating for erectile dysfunction Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The October 2016 rating decision on appeal granted service connection for erectile dysfunction and assigned a noncompensable rating from May 18, 2016. This appeal arises from the Veteran's disagreement with the initial rating assigned for erectile dysfunction. The Board notes that he is currently compensated with a separate award of special monthly compensation (SMC) for loss of use of a creative organ. The question for the Board is whether the Veteran's erectile dysfunction was manifested by penile deformity. The Board concludes that the preponderance of the evidence is against finding that the Veteran's erectile dysfunction has been manifested by penile deformity. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.3, 4.20, 4.115B, Diagnostic Code 7522. The Veteran's erectile dysfunction is rated by analogy under Diagnostic Code 7522. While no diagnostic code specifically addresses the diagnosis of erectile dysfunction, Diagnostic Code 7522 does address loss of erectile power, which is the symptomatology described by the Veteran. Moreover, that is the only diagnostic code that specifically addresses erectile function. The Board cannot identify a more appropriate diagnostic code, and the Veteran has not identified one. Butts v. Brown, 5 Vet. App. 532 (1993). Diagnostic Code 7522 provides for a single 20 percent rating for deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code 7522. This is a conjunctive set of criteria; both penile deformity and loss of erectile power must be present to warrant compensation at the sole authorized level. See Melson v. Derwinski, 1 Vet. App. 334 (1991); compare Johnson v. Brown, 7 Vet. App. 95 (1994). In every instance where the Rating Schedule does not provide a percentage evaluation for a diagnostic code, a zero percent evaluation is assigned when the requirements for a compensable rating of a diagnostic code are not shown. 38 C.F.R. § 4.31. A May 2016 Prostate Cancer Disability Benefits Questionnaire noted a diagnosis of erectile dysfunction following prostatectomy in March 2006. The Veteran was noted to be unable to achieve an erection sufficient for penetration and ejaculation without use of medication. There was no voiding dysfunction. The examination report additionally noted no retrograde ejaculation. There were no other complications due to treatment for prostate cancer. Medical records associated with the claims file note ongoing reports of erectile dysfunction. The Veteran testified before the undersigned that he was unable to achieve an erection and perform sexually with his wife. He did not report any penile deformity when specifically asked about this by his representative. He reported that medications and a penile injection had not helped his problem. There is no indication of a failed penile implant or prosthesis. A "deformity" is a "distortion of any part or general disfigurement of the body." Dorland's Illustrated Medical Dictionary 478 (32d ed. 2012) [hereinafter Dorland's]. Dorland's further defines various types of internal and external deformities. See also Williams v. Wilkie, 30 Vet. App. 134 (2018). Based on the lay and medical evidence of record the Board finds that the Veteran's erectile dysfunction does not more nearly approximate the level of severity contemplated by an increased compensable rating. The Board notes the Veteran's ongoing erectile dysfunction and reports of medicine and injection not working. The Veteran is competent to testify to such lay observable symptomatology. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, such lay evidence in this case, even when accepted as accurate, does not establish a level of disability contemplated by a higher evaluation. The evidence of record supports a noncompensable rating is warranted for the entire period on appeal. The record demonstrates an ongoing diagnosis of erectile dysfunction, without evidence of deformity of the penis. To warrant a compensable disability rating, there must be evidence of a penile deformity not shown here. The Veteran currently receives SMC for his erectile dysfunction 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 erectile dysfunction under DC 7522. Here, a penile deformity within the meaning of the regulations is not shown. There is no loss or removal of part of the penis (or glans penis) or deformity such as Peyronie's disease. Additionally, the Board finds that there is no basis for a higher or separate schedular evaluation under any other potentially available provision. As removal of the glans, complete atrophy or removal of the testis, or removal of half or more of the penis is not shown, a compensable rating under an alternative provision is not warranted. 38 C.F.R. § 4.115b, Diagnostic Codes 7521, 7523, 7524. It is noted that he has been awarded special monthly compensation for loss of a creative organ. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107 (b). REASONS FOR REMAND 1. A compensable initial rating for residuals of prostate cancer is remanded. The Veteran contends that he is entitled to a compensable initial rating for residuals of prostate cancer. At his hearing, the Veteran's responses were somewhat unclear when asked about urinary frequency and use of pads. His descriptions seemed to be focused mostly on the period in 2006 after his initial surgery, but he indicated that he sometimes wore a pad during the appeals period as well. He also testified that he urinated two to three times during the night, although it was not clear which time frame this referred to. On remand, the Veteran is invited to further clarify the nature, frequency and severity of his symptoms for the entire appeal period (i.e. since May 18, 2015). The Veteran testified that he had undergone radiation treatments in 2018-19 following elevation of his PSA. Following the hearing, he submitted partial private treatment records that included an October 2018 initial evaluation report and a January 2919 report after his final radiation treatment. The October 2018 record referred to a PET/CT in September 2018 that showed no evidence of disease, but noted that he had a rising PSA and positive margins, and needed radiation to the prostate fossa to decrease the chance of local recurrence. The October 2018 and January 2019 records noted nocturia x1, and that the Veteran denied dysuria or urgency. The Veteran has not been provided with a VA examination to properly evaluate his prostate cancer residuals. From the available records, it is unclear as to whether the radiation treatments indicated that there was recurrence of the cancer or whether they were to ordered to reduce chances of recurrence. Further, the Veteran's testimony of nighttime voiding two to three times was not consistent with the October 2018 and January 2019 records that note nocturia once per night, and those records do not refer to any pad use. Given the state of the evidence of record, the Board finds that an examination and the full private records are necessary to properly evaluate the claim. The matters are REMANDED for the following action: 1. The Veteran is invited to further clarify the nature, frequency and severity of his prostate cancer residual symptoms for the appeal period (i.e. since May 18, 2015). 2. After obtaining any necessary authorization from the Veteran, obtain and associate with the claims file any outstanding private treatment records pertaining to his radiation treatments between October 2018 and January 2019. 3. Schedule the Veteran for an examination with an appropriate medical professional to determine the current severity of his service-connected residuals of prostate cancer. The claims file should be reviewed by the examiner. The VA examiner should indicate whether there has been a recurrence in the Veteran's prostate cancer and address all residuals manifest by the Veteran's prostate cancer disability, to include any renal dysfunction and/or voiding dysfunction. The examiner is to specifically comment on whether the October 2018 to January 2019 radiation treatments were necessitated by a recurrence of prostate cancer or whether they were precautionary. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, 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.