Citation Nr: A25035990 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 241021-483390 DATE: April 18, 2025 ORDER Entitlement to an initial compensable evaluation for erectile dysfunction is denied. FINDING OF FACT The Veteran has been assigned the maximum schedular evaluation available for erectile dysfunction, and he has already been granted special monthly compensation (SMC) for loss of use of a creative organ. CONCLUSION OF LAW The criteria for an initial compensable evaluation for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-414, 4.115b, Diagnostic Code 7522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2016 to January 2020. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2023 rating decision. The Veteran submitted a VA Form 10182 in October 2024 and elected the direct review docket. Therefore, the Board may only consider the evidence of record at the time of the December 2023 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, he 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 claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. The Board notes that, in the October 2024 VA Form 10182, the Veteran also listed several other issues that were adjudicated in a January 2021 rating decision. However, there was no decision adjudicating those issues in the one-year period preceding receipt of the appeal. Therefore, the NOD was untimely as to those issues, and the Veteran did not request an extension of time for filing an appeal of the January 2021 rating decision or provide cause for such an extension. See 38 C.F.R. § 20.203. Indeed, he did not check the box on the VA Form 10182 indicating that he was requesting an extension or provide any statement as to why he would believe that there was good cause. Law and Analysis The Veteran has not raised any issues with the pre-decisional duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. When the schedule does not provide a zero percent evaluation for a Diagnostic Code, a zero percent evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). The Veteran is currently assigned a noncompensable evaluation for erectile dysfunction effective from August 18, 2023, pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7522. Under that diagnostic code, a noncompensable evaluation is assigned for erectile dysfunction with or without penile deformity. A higher rating is not available. A note to the diagnostic code also 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 Diagnostic Code 7522. VA provides disability compensation for conditions based on the average impairment of earning capacity pursuant to 38 U.S.C. 1155. Erectile dysfunction, with or without penile deformity, is not associated directly with reductions in earning capacity, which is why VA proposed to provide a noncompensable evaluation for erectile dysfunction under Diagnostic Code 7522. See 86 Federal Register 54801 (September 30, 2021). When a condition is specifically listed in the rating schedule (erectile dysfunction in this case), it may not be rated by analogy. Copeland v. McDonald, 27 Vet. App. 333 (2015). Moreover, there is no indication that the Veteran has had the removal of half or more of the penis (diagnostic code 7520); removal of the penis glans (diagnostic code 7521); atrophy of testis (diagnostic code 7523); or removal of testis (diagnostic code 7524). See e.g., October 2023 VA examination report (Veteran reported normal anatomy with no deformity or abnormality). The Board also observes that the Veteran is in receipt of special monthly compensation pursuant to 38 U.S.C. § 1114(k) based on the loss of use of a creative organ for his erectile dysfunction. Thus, the Veteran is compensated for his erectile dysfunction. Based on the foregoing, the Board finds that the Veteran is not entitled to a compensable evaluation for his service-connected erectile dysfunction. Accordingly, the appeal is denied. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.