Citation Nr: 18160360
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 14-32 559
DATE:	December 27, 2018
A compensable rating for erectile dysfunction is denied.
The Veteran’s erectile dysfunction is not manifested by both loss of erectile power and penile deformity.
The criteria for a compensable rating for erectile dysfunction have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.115b, Diagnostic Code 7522.
The Veteran served on active duty from July 1970 to September 1973.  This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA).
In a substantive appeal, the Veteran requested a hearing before the Board.  Thereafter, in September 2018, the Veteran withdrew his hearing request.  Accordingly, the Board finds that his hearing request has been withdrawn.  See 38 C.F.R. § 20.704(d), (e).
1. Entitlement to a compensable rating for erectile dysfunction
Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  See 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment.  
Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating.  38 C.F.R. § 4.7.  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.
The Veteran is currently assigned a noncompensable rating for his erectile dysfunction.  In a November 2018 statement, the Veteran asserted that he has a penis characterized by deformity with the loss of erectile power.  He states that the deformity is evident when his penis is erect.
There are no specific diagnostic criteria for erectile dysfunction.  Here, the Veteran’s erectile dysfunction is rated as most closely analogous to an unlisted genitourinary disability evaluated by penis deformity with loss of erectile power.  38 C.F.R. § 4.115b, DC 7522.  The rating criteria provide that a 20 percent rating, which is the maximum rating provided, is assignable for deformity of the penis with loss of erectile power.  Where the schedule does not provide a compensable evaluation for a diagnostic code, a noncompensable evaluation will be assigned when the requirements for a compensable evaluation are not met.  See 38 C.F.R. § 4.31.  
The Veteran has undergone multiple VA examinations that noted his erectile dysfunction, including examinations for the underlying cause, which is prostate cancer.  There is no question that the Veteran has a loss of erectile power.  During December 2012 and August 2015 VA examinations, examiners reported that the Veteran is unable to achieve an erection with or without medication that is sufficient for penetration and ejaculation.  Consequently, the only question remaining is whether the Veteran has a penis deformity under DC 7522.
The Board concludes that the Veteran does not have a penis deformity that would warrant a compensable rating.  Initially, the Board notes that the Veteran does not assert that he has an internal deformity.  See Williams v. Wilkie, No. 16-3252 (Vet. App. Aug. 7, 2018) (holding that the term “deformity” in DC 7522 includes internal or external distortion of the penis).  Additionally, the Veteran does not dispute that he has not displayed a penis deformity during prior VA examinations.  During urology consultations in January and February 2008, medical providers noted that the Veteran had a normal penis and testes.  
The Veteran now asserts that his penis deformity is only evident when his penis is erect.  However, the Board finds that the Veteran has not provided sufficient evidence demonstrating a penis deformity. The first time that the Veteran has asserted that he suffers from a penis deformity when erect is in November 2018, eight years after the initiation of the claim on appeal.  He has never mentioned a penis deformity during medical appointments as well as VA examinations in April 2009, October 2010, December 2012, and August 2015.  Notably, the Veteran explicitly refused a genital examination during his most recent August 2015 VA examination, but made no statements asserting a deformity.  
Given the absence of evidence of a deformed penis, the weight of the evidence is therefore against the claim and a compensable rating for erectile dysfunction is not warranted.  
The Board has also considered whether any other ratings are appropriate for the Veteran’s erectile dysfunction.  Impairment of this type is compensated by special monthly compensation (SMC) at the statutory rate for loss of use of a creative organ under 38 U.S.C. § 1114(k).  As the Veteran already receives SMC for loss of use of a creative organ, further consideration is unwarranted.
In considering the appropriate disability rating for the Veteran’s erectile dysfunction, the Board has considered the Veteran’s statements that his disability is worse than the rating he currently receives.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  
Competency of evidence differs from weight and credibility.  While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his disabilities according to the appropriate diagnostic codes.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). 
On the other hand, such competent evidence concerning the nature and extent of the Veteran’s erectile dysfunction has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings directly address the criteria under which erectile dysfunction is evaluated.  
In contrast, the Veteran has not submitted any specific statements describing the deformity.  Moreover, the Board also notes that contemporaneous evidence has greater probative value than a reported history, including the Veteran’s November 2018 statement.  Curry v. Brown, 7 Vet. App. 59, 68 (1994).  Consequently, the Board assigns more probative value to the Veteran’s medical treatment records and VA examinations, which do not demonstrate a penis deformity.
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Borman, Associate Counsel 

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