Citation Nr: 21041788 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-21 721 DATE: July 10, 2021 ORDER Entitlement to service connection for a psychiatric disorder aside from service-connected other specified trauma and related disorder, to include as secondary to a service-connected back disability, is denied. Entitlement to a compensable rating for service-connected erectile dysfunction is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has psychiatric disorder diagnoses with symptoms that are separate and distinct from his service-connected other specified trauma and related disorder. 2. The preponderance of the evidence is against finding that the Veteran has a penis deformity. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder diagnosis aside from service-connected other specified trauma and related disorder, to include as secondary to a service-connected back disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to a compensable rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.20, 4.21, 4.31, 4.115b, Diagnostic Code 7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1992 to February 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. The claims were previously remanded by the Board in June 2020. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38U.S.C. §§1110, 1131, 5107; 38C.F.R. §3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38U.S.C. §5107(b); 38C.F.R. §3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38U.S.C. §5107(b). 1. Entitlement to service connection for a psychiatric disorder aside from service-connected other specified trauma and related disorder, to include as secondary to a service-connected back disability The Veteran contends that he is entitled to service connection for psychiatric disorders, including depressive disorder and anger disorder. The question for the Board is whether the Veteran has a current psychiatric disability separate from his service-connected psychiatric disorder that is caused by or related to active service, or is proximately due to or the result of, or is aggravated beyond its natural progress by service-connected disability. The Board notes that pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In other words, for service connection to be granted for a depressive or anger disorder, it must be shown that the Veteran's depression and anger represent separate and distinct disabilities from his already service-connected other specified trauma and related disorder. If it is found that the Veteran's depression and/or anger symptoms do not represent a distinct disability or are already considered alongside his service-connected psychiatric disorder, then service connection would not be warranted. The Board concludes that the Veteran does not have current diagnoses of either a depressive disorder or anger disorder with symptoms that are separate and distinct from his currently service-connected other specified trauma and related disorder. A review of service treatment records shows the Veteran was seen for depression related to stress management and marital issues in January 1995. However, during the Veterans February 1995 separation examination, he was not noted to have a psychiatric disorder. Following service separation, VA medical records indicate the Veteran sought mental health treatment beginning in August 2002, and was diagnosed with major depressive disorder. The Veteran continued to receive VA mental health treatment, and was again noted to have a diagnosis of major depressive disorder in December 2012 and December 2013. In support of his claim, the Veteran provided an independent medical report from a private physician in March 2018. However, the physician did not discuss whether the Veteran has a psychiatric disorder aside from his service-connected other specified trauma and related disorder that is etiologically related to either his military service or a service-connected disability. Therefore, the Veteran was afforded a video telehealth VA examination in December 2020. The Veteran reported symptoms that included irritability, anger outbursts, and a depressed mood. The VA examiner opined that the claimed psychiatric conditions are less likely than not caused or aggravated by the Veteran's military service or a service-connected disability. Instead, the VA examiner determined that the Veterans depression and anger are symptoms of his currently service-connected psychiatric disorder, are not separate diagnoses. While the Veteran believes he has current psychiatric diagnoses with separate and distinct manifestations from his service-connected other specified trauma and related disorder, he is not competent to make such an assessment. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, particularly the December 2020 VA examiner's opinion. The Veteran's service-connected other specified trauma and related disorder, rated as 70 percent disabling, contemplates his depressed mood and anger. Awarding service connection for separate psychiatric disorders would violate the pyramiding prohibition. See 38 C.F.R. § 4.14. Therefore, the Board finds the preponderance of the evidence of record is against the award of service connection for a depressive disorder and/or an anger disorder as separate and distinct disabilities from the Veteran's currently service-connected psychiatric disability. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine is not applicable, and the Veteran's claim must be denied. 38 U.S.C. § 5107 (b) (West 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Criteria Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran's current symptomatology. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. 2. Entitlement to a compensable rating for service-connected erectile dysfunction The Veteran contends that his erectile dysfunction warrants a compensable rating. Specifically, at the March 2020 Board hearing, the Veteran indicated that he now has a penis deformity. The Veteran's erectile dysfunction is currently rated under 38 C.F.R. § 4.115b, Diagnostic Code 7522. Under that diagnostic code, deformity of the penis with loss of erectile power warrants a 20 percent rating. 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 are not met. 38 C.F.R. § 4.31. The Veteran was afforded VA examinations in January 2013 and November 2020. Both VA examiners noted that the Veteran has erectile dysfunction. The January 2013 examiner also diagnosed the Veteran with Peyronie's disease, but was unable to verify, during the physical examination, the presence of a deformity. At the November 2020 examination, the Veteran declined a physical examination, and he did not report having a penis deformity. Additionally, neither examiner indicated that the Veteran had any other penile, teste, urinary tract, or voiding dysfunction. The Board acknowledges that the Veteran reported at the Board hearing that he now has a penis deformity. However, such a deformity was not observed during the January 2013 VA examination, and he specifically declined a physical penile examination at the November 2020 VA examination. The Board also notes that the Veteran's representative submitted a brief in April 2021, but made no mention of the Veteran having a deformity. VA medical records also fail to show the Veteran has a deformity. Therefore, the Board finds that the January 2013 and November 2020 VA examinations are adequate for adjudication purposes, and assign great probative weight to the available findings. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that the Veteran is not entitled to a compensable rating for erectile dysfunction, as the preponderance of the evidence is against a finding that he has a current deformity to warrant a higher rating. 38 C.F.R. § 4.115b, Diagnostic Code 7522. Consideration has also been given to assigning a staged rating. However, at no time during the period in question has the Veteran's disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2008). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a compensable rating for erectile dysfunction is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Miller, 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.