Williams: Erectile Dysfunction and the Meaning of Deformity

Williams v. Wilkie, Case Number 16-3252, decided August 7, 2018 considers whether the meaning of “deformity” in the context of a rating for erectile dysfunction.

This case involved a veteran who was service connected for prostate cancer secondary to herbicide exposure from Vietnam.  He had to undergo a radical prostatectomy which resulted in severe erectile dysfunction.  He was service connected for the erectile dysfunction but given a non-compensable rating (i.e., 0%). 

The Board denied a rating of 20% pursuant to DC 7522 which resulted in a 2015 remand by the Court requiring a medical opinion as to whether the veteran had an internal deformity.  A subsequent examination found no deformity but also stated “[t]here are no

specific tests for ‘internal deformity of the penis’ that would show evidence of nerve damage. Basically, there is no evidence of deformity of the penis at all.  Deformity would occur in diseases such as Peyronie's disease, which he does not  have. Nerve damage does not cause deformities generally, but rather loss of function.”  Id. at *2.

The Board determined in its decision

that the Veterans Benefits Administration “has indicated that a compensable rating under [DC] 7522 is not warranted in the absence of deformity, and instructs that such deformity be 'evident.'" R. at 8 (quoting VA Adjudication Procedures Manual (M21-1), pt.  II.iv.4.I.2.a). The Board concluded that "no deformity was found at any point pertinent to this appeal, to include examinations conducted in January 2008, April 2009, January 2012, and December 2015."

Additionally, the Board found that an award of a compensable rating for "[ED] alone, regardless of the severity," under DC 7522 would constitute impermissible pyramiding because the appellant was already in receipt of SMC benefits for the loss of use of a creative organ. R. at 11 (citing 38 C.F.R. § 4.14 (2017)).

Id. at *3.

First, the Court rejected the Board’s conclusion that benefits under DC 5722 in addition to SMC for loss of a creative organ would constitute impermissible pyramiding.  Id. at *4.  It noted “VA's regulations state that a veteran is not barred from receiving SMC under 38 U.S.C. § 1114(k) in addition to schedular compensation for a disability. See 38 C.F.R. § 3.350(a) (2018).”  Id.

Second, the Court stated, “This case turns on the proper definition of "deformity," in particular whether a deformity under DC 7522 must be external.” Id. at *5.  The Court then noted that the term deformity is not expressly defined by the VA and so determined it should use the ordinary meaning of the word.  It then stated:

A "deformity" is a "distortion of any part or general disfigurement of the body." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 478 (32d ed. 2012) [hereinafter DORLAND'S].  DORLAND'S further defines various types of internal and external deformities. See id. The Court therefore holds that "deformity" under DC 7522 means a distortion of the penis, either internal or external.

Id. at *6.

The Court then determined remand was necessary for the Board to apply the ordinary meaning of “deformity,” in other words, to determine whether severed nerves caused by a radical prostatectomy meet the definition of penile deformity.  Id.

This is a powerful case as many veterans are secondarily service connected for ED and receiving SMC.  This case opens the door to a higher rating.

I would expect the VA to take two actions in response.  First, change the manual language to try to address the deformity issue.  And, second, try to change the regulations to clarify that this fact pattern would constitute pyramiding.  The first change will be difficult to challenge.  But, the second change is more time consuming for the VA.  Until such time as those changes, I would continue to hammer away at these claims and even after the changes their might be room to argue for a separate rating under DC 7522 for ED.

The decision was by Judge Greenberg and joined in by Judges Schoelen and Pietsch.