Citation Nr: A25035009 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240217-418074 DATE: April 16, 2025 ORDER Entitlement to an effective date of March 7, 2023, but no earlier, for service connection for erectile dysfunction (ED) is granted. Entitlement to an effective date of March 7, 2023, but no earlier, for special monthly compensation (SMC) under 38 U.S.C. § 1114(k) for loss of use of creative organ is granted. Entitlement to an initial compensable rating for ED is denied. Entitlement to an increased rate of SMC under 38 U.S.C. § 1114(k) on account of loss of use of creative organ is denied. FINDINGS OF FACT 1. The Veteran's claim for penile condition was received on July 19, 2023, which was more than one year after his discharge from active service in September 2020. 2. The Veteran's March 7, 2023, notice of Intent to File corresponds to the July 19, 2023, VA Form 21-526EZ claiming entitlement to service connection for penile condition. 3. The Veteran has been in receipt of the maximum schedular rating assignable under Diagnostic Code (DC) 7522 for ED, with or without penile deformity, during the rating period under review. 4. The Veteran currently receives SMC under 38 U.S.C. § 1114(k) on account of loss of use of a creative organ; VA law does not allow a higher award of SMC for loss of use of a creative organ. CONCLUSIONS OF LAW 1. The criteria for an effective date of March 7, 2023, but no earlier, for the grant of service connection for ED have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.400, 3.2500. 2. The criteria for an effective date of March 7, 2023, but no earlier, for the award of SMC for loss of a creative organ have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.400, 3.2500. 3. The criteria for a compensable rating for erectile dysfunction have not been met for the entire period on appeal. 38 U.S.C. §§ 1155; 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.115b; DC 7522. 4. The criteria for an increased rate of SMC under 38 U.S.C. § 1114(k) on account of loss of use of creative organ have not been met. 38 U.S.C. §§ 1114(k), 1155, 5107(b); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served in the United States Army from August 2019 to September 2020. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2024 Modernization Act (AMA) rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In his February 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the February 2024 AOJ decision on appeal. If evidence was submitted during the period after the AOJ issued the decision on appeal the Board did not consider it in its decision. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to an effective date earlier than July 19, 2023, for service connection for ED Entitlement to an effective date earlier than July 19, 2023, for SMC under 38 U.S.C. § 1114(k) for loss of use of creative organ The Veteran contends that he is entitled to an earlier effective date for service connection of his ED condition and SMC. The effective date of an award of disability compensation to a veteran will be the day following separation from active service or date entitlement arose if the claim is received within one year of separation from active service; otherwise, it will be the date of receipt of claim, or the date when entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). In general, date of receipt means the date on which a claim, information or evidence was received in VA. 38 C.F.R. § 3.1(r). To preserve an effective date, an intent to file a claim may be submitted to VA. 38 C.F.R. § 3.155(b). If VA receives a complete application form prescribed by the Secretary, appropriate to the benefit sought within one-year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155. VA received the Veteran's Intent to File on March 7, 2023, indicating that he intended to file a claim for compensation. The Veteran submitted a VA 21-526EZ original claim on July 19, 2023, identifying service connection for penile condition as the claim. As the Intent to File letter and corresponding VA 21-526EZ was not received within one year of the Veteran's separation from service, award of service connection the day following separation from service is not warranted. In a February 2024 rating decision, service connection was granted for ED (claimed as penile condition) assigning a noncompensable or zero percent rating, effective July 19, 2023, the date VA received the claim for penile condition. As noted above, the regulations allow a Veteran to submit an Intent to File a claim and VA will recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives a complete claim form within one year. 38 C.F.R. § 3.155(b). In this case, a complete claim was received within one year of the March 7, 2023, Intent to File and, therefore, March 7, 2023 can properly be recognized as the date of claim for ED. As the award of SMC for loss of use of a creative organ is based upon the date of award for ED, the effective date of SMC is also March 7, 2023. Based on the above, the Board finds that entitlement to an effective date of March 7, 2023, but no earlier, is granted for service connection of ED and award of SMC. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Ratings In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id.: see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." See 38 U.S.C. § 1155; Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions will be equitable and just as contemplated by the requirements of the law. 38 C.F.R. § 4.6. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102 (reasonable doubt to be resolved in Veteran's favor); 4.3; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (the benefit-of-the-doubt rule applies if the competing evidence is in approximate balance). Entitlement to an initial compensable rating for ED Entitlement to an increased rate of SMC under 38 U.S.C. 1114(k) on account of loss of use of creative organ The Veteran contends that the severity of his erectile dysfunction is greater than contemplated by a noncompensable disability rating and that he is entitled to higher special monthly compensation for loss of use of a creative organ. 38 U.S.C. § 114(k); 38 C.F.R. §3.350(a). While the Board acknowledges that a prior version of DC 7522 provided for a compensable rating for "penis, deformity, with loss of erectile power," DC 7522 was amended, effective November 14, 2021. See Schedule for Rating Disabilities: The Genitourinary Diseases and Conditions, 86 Fed. Reg. 54081 (Sept. 30, 2021). Because the rating period under review commenced with the Veteran's March 7, 2023, intent to file, the prior (i.e., pre-amendment) version of DC 7522 does not apply in the present matter. DC 7522 now provides for a single noncompensable rating for ED with or without penile deformity. 38 C.F.R. § 4.115b. The Note to DC 7522 states that, for the purpose of VA disability evaluation, a disease or traumatic injury of the penis resulting in scarring or deformity shall be rated under DC 7522. Footnote 1 to DC 7522 provides for review for entitlement to SMC based upon loss of use of a creative organ. The Veteran was afforded VA Male Reproductive Organs Condition examinations in August and December 2023. The Veteran reported symptoms of difficulty urinating and starting and maintaining an erection. The VA examiners diagnosed erectile dysfunction and noted that the Veteran treated his disability with medication as needed. Retrograde ejaculation was endorsed in the second report of examination but not in the first. There was no indication of a penile deformity, renal dysfunction, or voiding dysfunction, an orchiectomy (an excision of one or both testes), malignant neoplasm, or any physical abnormality in either examination. While in the first examination the Veteran did not undergo a physical examination, at his request, he reported normal anatomy with no testicular deformity or abnormality. The examiner further noted that medication effectively treated his ED. The Veteran's ED disability did not impact his ability to work. In summary, the Veteran is already in receipt of the maximum schedular rating applicable to ED, and there is no lay or medical evidence under review reflecting any additional functional impairment or symptoms associated with ED to warrant a higher or separate rating under other genitourinary rating criteria at any time during the rating period under review. Thus, the Board finds that the evidence persuasively weighs against the assignment of a higher, compensable rating for ED and, consequently, there is no reasonable doubt to be resolved. See Lynch, 999 F.3d 1391. As a result, the increased rating claim must be denied. The Veteran is receiving SMC for loss of use of a creative organ. Specifically, the Board understands that the Veteran is asserting that he should receive a higher amount of SMC due to the impact of his ED on his personal life. While schedular rates of compensation are based upon the average reduction in earning capacity, SMC benefits provide compensation for noneconomic factors such as personal inconvenience, social inadaptability, or the profound nature of the disability. VAOPGPREC 5-89 (Mar. 23, 1989). Accordingly, SMC is an ancillary benefit paid in addition to a schedular rating to veterans who have certain disabilities, combinations of disabilities, or severities of disabilities, or who meet a certain threshold in assigned disability percentages, or which renders the Veteran housebound or in need of the regular aid and attendance of another person. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. For the disability of loss of use of a creative organ, VA law provides only one level of SMC regardless of severity. The regulation is clear that SMC may only be awarded once at the set amount for the loss of use of a creative organ irrespective of the degree of loss. 38 U.S.C. § 1114(k). In light of the foregoing, the Board finds that the criteria for a compensable rating for erectile dysfunction or a higher SMC have not been met at any point during the period on appeal. In so finding, the Board has carefully considered the benefit of the doubt rule; however, as the evidence of record persuasively weighs against a compensable rating and against a higher SMC at any point during the period on appeal, there is no doubt to resolve. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch, 21 F.4th at 781. A compensable disability rating for ED and a higher SMC is therefore denied. DUSTIN L. WARE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adams Hill, Denise 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.