Citation Nr: 18123933
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-28 754
DATE:	August 3, 2018
ORDER
Entitlement to a compensable disability rating for erectile dysfunction (ED) is denied.
REMANDED
Entitlement to an effective date earlier than July 28, 2009 for the grant of service connection for prostate cancer is remanded.
Entitlement to a rating in excess of 60 percent for residuals of prostate cancer is remanded.
Entitlement to an initial rating in excess of 10 percent for mild fecal incontinence is remanded.
Entitlement to additional special monthly compensation (SMC) is remanded.
FINDING OF FACT
The Veteran’s ED is shown to have been manifested by loss of erectile power, but not by deformity of the penis or any other functional limitation.
CONCLUSION OF LAW
The criteria for a compensable rating for ED have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.115(b), Diagnostic Code (DC) 7599-7522 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from October 1966 to July 1969.  In July 2017, he testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is of record. 
Increased rating for ED
The Veteran seeks a compensable disability rating for his service-connected ED.  In support of his appeal, he has expressed dismay at being unable to perform sexually as a result of treatments for his prostate cancer.
The symptoms of ED are contemplated by an award of SMC for the loss of use of a creative organ.  See 38 U.S.C. § 1114(k).  The Veteran is currently in receipt of SMC for his ED, effective from August 17, 2005.  A compensable schedular rating for ED may also be assigned when there is associated deformity of the penis, pursuant to 38 C.F.R. § 4.115(b), DC 7522.  Under that DC, a 20 percent rating is warranted for deformity of the penis with loss of erectile power.
The Veteran’s reports of being unable to perform sexually are compensated by his award of SMC for such impairment.  However, additional compensation in the form of a compensable schedular rating is not warranted in this case, as the evidence of record does not establish that the Veteran has had a penile deformity at any time during the appeal period.  Most notably, a May 2013 VA male reproductive system examination showed that while the Veteran was unable to achieve an erection sufficient for penetration and ejaculation, he reported normal anatomy with no penile deformity or abnormality (the Veteran declined a physical examination of his genitalia but provided this information to the examiner).  At his Board hearing, the Veteran did not allege that he had a penile deformity, but rather reiterated that he was unable to have sexual intercourse.  In short, there is simply no evidence of penile deformity that would justify a compensable rating under DC 7522.
Generally, compensable schedular ratings are assigned to reflect impairment of earning capacity (from the disability in question).  See 38 C.F.R. § 4.1.  In this case, although the Board is sympathetic to the Veteran’s contentions regarding his symptoms, impairment of earning capacity due to ED has not been established.  Consequently, a compensable rating for the ED separate from the Veteran’s award of SMC for such disability is not warranted. 
Neither the Veteran nor his attorney have alleged any symptoms of, or impairment due to, ED not encompassed by the schedular criteria or acknowledged by the SMC award, and the record does not suggest that such exist.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
REASONS FOR REMAND
Earlier effective date for prostate cancer
The Veteran was diagnosed with prostate cancer following a biopsy performed in July 2009.  He filed a claim for service connection later that month, and service connection was subsequently granted in October 2009, effective July 28, 2009.  The Veteran contends, however, that the cancer predated his formal diagnosis, and that he is therefore entitled to an earlier effective date.  Specifically, he contends that he had elevated PSA levels starting in 2002, which were consistent with prostate cancer but not diagnosed as such.
The Board notes that, unless specifically provided otherwise, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of an application therefor.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.
In this case, the award of service connection for prostate cancer was made effective on July 28, 2009, the date VA received notification from the Veteran of his diagnosis and his intent to seek disability compensation.  However, prior to that claim, in January 2006, the Veteran submitted a separate, informal claim for service connection for prostate problems, to include the fact that his “PSA was high.”  See 38 C.F.R. § 3.1(p) (2006) (defining “claim” or “application” to mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit).  Although an August 2011 rating decision and a November 2013 Statement of the Case adjudicating the earlier effective date issue state that the RO issued a rating decision in May 2006 denying the January 2006 claim for prostate problems, no such rating decision is of record.  Hence, that claim remains pending—and thus could potentially serve as the basis for an earlier effective date under 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400.
However, additional evidentiary development is required prior to a final decision in this matter.  Specifically, a retrospective medical opinion is needed to ascertain when the Veteran’s prostate cancer first developed, in light of his contentions and medical history discussed above.  Thus, a remand is required.  
Increased Rating Claims
The Veteran was last provided a VA examination for his prostate cancer residuals, to include fecal incontinence, in May 2013.  At his July 2017 Board hearing, he testified that his symptoms had worsened since that time, including increasing bowel incontinence and general tiredness.  The Veteran’s attorney also asserted in a July 2017 brief that the Veteran’s symptoms had worsened and warranted higher ratings.
The Veteran’s current 60 percent rating for prostate cancer is the maximum schedular rating available for symptoms relating to voiding dysfunction.  See 38 C.F.R. § 4.115(a) (ratings of the genitourinary system—dysfunctions).  However, increased schedular ratings are potentially available for renal dysfunction, including for symptoms such as generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion.  See id.  As noted above, the Veteran has reported some of these symptoms; as such, additional examination is needed to ascertain the current severity of his service-connected symptomatology.
Higher schedular ratings are likewise available under DC 7332, which governs impairment of sphincter control of the rectum and anus.  See 38 C.F.R. § 4.114, DC 7332.  In light of the Veteran’s allegations of worsening incontinence, an updated examination is needed for these symptoms as well. 
SMC
The Veteran originally perfected his appeal as to the issue of entitlement to SMC at the housebound rate.  See 38 U.S.C. § 1114(s).  During the pendency of the appeal, the RO issued a rating decision in September 2015 which granted SMC based on the need for aid and attendance (pursuant to 38 U.S.C. § 1114(l)), effective May 26, 2015.  Notwithstanding, the Veteran’s attorney has argued, including at the Veteran’s Board hearing, that the Veteran could be entitled to even higher rates of SMC, including on the basis of loss of use of his extremities due to his service-connected disabilities.  The Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record.  Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see also Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (holding that a claim for increased disability compensation may include the inferred issue of entitlement to SMC, even where the Veteran has not expressly placed entitlement to SMC at issue).
In any event, because the resolution of the increased rating and earlier effective date claims discussed above could implicate the determination as to the appropriate level of SMC compensation, the Board finds that the issue of entitlement to additional SMC is inextricably intertwined and must be remanded as well.  On remand, the RO should undertake appropriate development, to include scheduling a VA examination if necessary, to determine if the Veteran meets the requirements for SMC based on loss of use of his extremities, as reflected by the Veteran’s attorney’s statements at his Board hearing.  
The matters are REMANDED for the following action:
1. Obtain a medical opinion from an appropriate clinician regarding whether the Veteran’s prostate cancer developed prior to his formal diagnosis in July 2009.  The examiner should specifically discuss the Veteran’s elevated PSA levels from the early 2000s, as well as his contentions that doctors believed his prostate cancer may have been active prior to his formal diagnosis.  The examiner should attempt to estimate a specific date on which it first became at least as likely as not that the Veteran’s prostate cancer was active.
2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected prostate cancer residuals, to include fecal incontinence.  The examiner should specifically address whether the Veteran has renal dysfunction (and, if so, any symptoms resulting therefrom).  With respect to fecal incontinence, the examiner should specifically address the Veteran’s lay reports of involuntary bowel movements.
3. Then, readjudicate the claim of entitlement to additional SMC.  If necessary, schedule the Veteran for a VA examination for the purpose of determining whether the requirements of additional SMC have been met, to include evaluating whether the Veteran has lost the use of any of his extremities due to service-connected disease or injury, as suggested by his attorney at the July 2017 Board hearing.

 
A. S. CARACCIOLO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Department of Veterans Affairs 

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