BVA9505894 DOCKET NO. 93-08 595 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether there was clear and unmistakable error in rating decision of February 15, 1984, in not establishing entitlement to a higher level of special monthly compensation on the basis of loss of use of both lower extremities. 2. Whether there was clear and unmistakable error in rating decision of April 2, 1987, in not establishing entitlement to a higher level of special monthly compensation on the basis of loss of use of both lower extremities. 3. Entitlement to special monthly compensation based on the loss of use of a creative organ. 4. Entitlement to an increased (compensable) evaluation for penile prosthesis (status post impotency). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Christopher B. Moran, Counsel INTRODUCTION The veteran served on active duty from August 1967 to May 1969. The Board of Veterans' Appeals (Board) notes that during the course of the development of the certified issues for appeal, the veteran gave notice of disagreement with respect to a Department of Veterans Affairs (VA) regional office (RO) rating determination of January 1992 reducing the 60 percent disability evaluation in effect for service-connected paralysis of bladder with loss of bladder control secondary to encephalomyelitis since March 1, 1983, to 30 percent effective from April 18, 1991. However, since a hearing officer's decision of November 5, 1992, restored the 60 percent evaluation for the veteran's bladder disorder effective from April 18, 1991, the RO determined that the favorable action constituted a full grant of benefits with respect to such matter and therefore the issue was not carried forward for appellate review. Neither the veteran nor his representative contend otherwise. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed clear and unmistakable error in the rating actions of February 15, 1984, and April 2, 1987, which essentially failed to award special monthly compensation based on loss of use of the lower extremities because there was sufficient medical evidence of record to document the fact that he had loss of use of both feet due to footdrop and loss of use of the legs thereby meeting the criteria for a higher level of special monthly compensation. He also argues that he is entitled to special monthly compensation based on the loss of use of a creative organ, and that his current impotence is proximately due to or the result of a service- connected disease or injury. Specifically, it is alleged that, despite the insertion of a penile prosthesis, he continues to suffer from a "functional impotence" directly attributable to service-connected disability. Consequently, he seeks entitlement to special monthly compensation based on loss of use of a creative organ. He also maintains that his service-connected penile prosthesis; status post impotency meets the criteria for a 20 percent evaluation based on loss of erectile power. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that rating decisions of February 15, 1984, and April 2, 1987, did not constitute clear and unmistakable error in failing to award a higher level of special monthly compensation on the basis of loss of use of the lower extremities; it is further the decision of the Board that the preponderance of the evidence is against a claim of entitlement to an increased (compensable) evaluation for the penile disorder, prosthesis; status post impotency; it is, however, the decision of the Board that the evidence is in favor of the grant of special monthly compensation based on the loss of use of a creative organ. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The rating determination of February 15, 1984, with respect to special monthly compensation based on loss of use of one foot, was in accordance with statutory and regulatory provisions pertaining to special monthly compensation and consistent with and supported by the evidence and the correct facts as they were known at the time of the rating action. 3. The rating determination of April 2, 1987, with respect to special monthly compensation based on loss of use of one foot, was in accordance with statutory and regulatory provisions pertaining to special monthly compensation and consistent with and supported by the evidence and the correct facts as they were known at the time of the rating action. 4. Service connection is in effect for penile prosthesis; status post impotency secondary to encephalomyelitis. 5. Due primarily to service-connected encephalomyelitis, the veteran developed impotency for which he underwent the implantation of a penile prosthesis. 6. The veteran reports that, notwithstanding the aforementioned implantation surgery, there is residual penile dysfunction 7. The veteran's penile disorder, prosthesis; status post impotency, does not result in penile deformity although there is reported loss of erectile power. CONCLUSIONS OF LAW 1. The decision of the RO on February 15, 1984, which granted special monthly compensation for loss of use of one foot was not clearly and unmistakably erroneous. 38 U.S.C.A. § 1114(k), (l) and (m)(West 1991); 38 C.F.R. §§ 3.105(a), 3.350(a)(c), 4.63 (1984). 2. The decision of the RO on April 2, 1987, which granted special monthly compensation for loss of use of one foot was not clearly and unmistakably erroneous. 38 U.S.C.A. § 1114(k), (l) and (m) (West 1991); 38 C.F.R. §§ 3.105(a), 3.350(a)(c), 4.63 (1987). 3. The requirements for special monthly compensation based on the loss of use of a creative organ are met. 38 U.S.C.A. §§ 1114(k), 5107(b) (West 1991); 38 C.F.R. § 3.350(a) (1994). 4. The criteria for an increased (compensable) evaluation for penile prosthesis, status post impotency secondary to encephalomyelitis have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.31 and Part 4, Diagnostic Code 7522 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty To Assist We note that we have found that the veteran's claims are plausible and therefore well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). We are satisfied that all relevant facts have been properly developed, that the evidentiary record is satisfactorily complete, and that no further assistance to the veteran is required in order to comply with our statutory duty to assist him in the development of facts pertinent to his appeal. Murphy v. Derwinski, 1 Vet.App. 78 (1990). II. Whether Clear And Unmistakable Error existed In The Rating Determination of February 15, 1984. At the outset, the Board notes that a rating determination dated April 1, 1993, granted special monthly compensation under appropriate provisions of 38 U.S.C.A. § 1114 for loss of use of both legs from April 18, 1991. Special monthly compensation had been in effect solely for loss of use of one foot on the right under appropriate provisions of 38 U.S.C.A. § 1114(k) from March 1, 1983 to the time of the recent rating action. On file at the time of the April 1993 rating decision was a report of a VA neurologic examination dated November 1991 which noted that the veteran was unable to stand or walk. He came to the examination in a wheelchair accompanied by his wife. Even with assistance he could not use his feet or legs and could not stand or walk due to both proximal and distal muscle weakness, bilaterally. The veteran primarily argues that prior unappealed RO rating determinations of February 15, 1984, and April 2, 1987, were clearly and unmistakably erroneous in failing to grant special monthly compensation for loss of use of both lower extremities in view of the fact that there was sufficient medical evidence of record at the time of both rating actions to document the fact that he met the criteria for that higher level of special monthly compensation. He claims that a VA clinical record which was submitted in October 1991 was duplicative of findings already of record showing that as early as approximately October 1979 the veteran was sent to the VA orthopedic clinic for new drop foot braces. The 1984 (and 1987) rating action awarded special monthly compensation under 38 U.S.C.A. § 1114(k) based on loss of use of one (the right) foot. Had the 1984 (or 1987) rating action found that there was either loss of use of the right foot and the left leg; or loss of use of both feet; or loss of use of both legs, the veteran would have established entitlement to special monthly compensation at a higher rate under 38 U.S.C.A. § 1114 (l 1/2), (l) or (m), respectively. In this regard, a decision of the rating board which is unappealed will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed and amended. 38 C.F.R. § 3.105(a). Thus, we must look at the factual situation as it presented itself at the time of the prior rating decisions and the rating board's application of the applicable law to those facts. We note that clear and unmistakable error means errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. The error must be one that would change the outcome (i.e., not a "harmless error" and since it is "undebatable" by definition, the "benefit of the doubt" doctrine would never be applicable). A determination that there was clear and unmistakable error in a prior decision warranting revision is to be based on the record and the law that existed at the time of the prior decision. Russell v. Principi, 3 Vet.App. 310 (1992). An historical review of the record shows that an initial RO rating determination dated July 1969 established service connection for encephalomyelitis manifested by bilateral paralysis, incomplete of sciatic nerve, with paralysis of bladder and impaired vision; visual acuity right, 20/200, evaluated at a 100 percent schedular evaluation in accordance with 38 C.F.R. Part 4, Diagnostic Code 8000, based upon objective findings of incurrence in service. On an initial report of a special post service VA neurology examination in January 1970, it was noted that the veteran presented himself for examination at the neurology clinic. He was ambulatory with the use of a cane and lower leg brace. On objective examination it was noted that he had an obvious spastic gait with a slight scissors component. He wore a simple drop foot brace on the left lower extremity and used a cane. Heel walking was accomplished with ability to lift the foot off the floor. Straight line walking was not performed well. Hopping was not able to be done. Rapid alternating movements were done, worse on the left than the right, but not done "too well on the right." In the lower extremities, knee jerks were three plus. There was no clonus at the patella area. At the Achilles area there was sustained clonus. At these reflexes were five plus. There was a negative Babinski's bilaterally, checked and rechecked. The lower extremities, because of spasticity, were described as poor bilaterally with no cerebellar problem. Position sense was present and good in the left foot; was slightly decreased in the right great toe, but present in the area. Vibration was decreased in the right lower extremity but almost absent in the left lower extremity. However, the heel to shin was performed well without looking. A rating determination dated in March 1970 confirmed and continued the 100 percent evaluation previously noted. On a VA neurology examination in January 1972 it was noted that the veteran had encephalomyelitis while in the service and had been considerably disabled since. He said at the present, his restrictions included going up stairs, walking fast, running, riding bicycles, etc. On objective examination the motor system revealed some general diminution of strength in the lower extremities. The weakness was a little more apparent on gait than on actual objective testing. He had weakness of dorsiflexion of his left foot. Decreased sensation to all modalities in his left leg and thigh was noted. Reflexes were normal except for marked hyperactivity in the lower extremities. A rating determination dated in January 1972 confirmed and continued the 100 percent evaluation previously assigned. There was indication in the file that in May 1974 the veteran applied for a left leg brace (metal brace) but was notified by the RO in May 1974 that no action would be taken on his application for annual clothing allowance based on use of left leg brace because he had been authorized clothing allowance on a continued basis based on a right leg brace. There was indication that under the law, a veteran who is entitled to the special clothing allowance received the maximum amount per year regardless of the number of prosthetic or orthopedic appliances he uses. In June 1983, the veteran filed a claim for increased benefits. VA outpatient clinical records dating between November 1981 and to approximately June 1983 show that he underwent a period of hospitalization from March 1, to March 8, 1983, for multiple sclerosis. It was noted as history that he developed symptoms in Vietnam. He had been in various hospitals for a year with gradual recovery to almost full function with residual urinary difficulties except for neurogenic bladder; some left leg spasticity and a right eye blindness from which he had now recovered. However, it was noted that he had made full recovery from his transverse myelitis. Three weeks earlier, he began noticing numbness in his left leg up to the inguinal ligament. He denied pain, tingling, or paresthesias. He could not point to the onset of his numbness. On hospital admission physical examination it was noted that he ambulated with a cane in his right hand and a brace on his left leg, slightly rocking, shuffling, but without circumduction. He could not tandem walk or walk on his heels and toes. Reflexes were two plus bilaterally. Right Babinski was down. Left Babinski was up. At hospital discharge he was to be followed up periodically. It was noted that he missed an appointment at the neurology clinic in late March 1983 and that he was to be rescheduled in July. He needed physical therapy and a walker to ambulate at home. In September 1983, the veteran underwent a VA neurologic examination. He indicated that in approximately February 1983 he started having numbness in the left lower extremity. He was admitted in the neurology ward and after an examination it was decided he had multiple sclerosis. Since that discharge from the hospital he was not able to walk with a cane, but rather with a walker. Motor system examination showed decreased strength in both the lower extremities, but more marked on the right. He wore braces in both legs, a metallic brace on the left side and a plastic brace on the right side. He was unable to walk without a brace. He could barely stand up from the wheelchair and could not take any steps without the help of a cane or a walker. Reflexes were hyperactive with a bilateral Babinski. Sensory examination showed he had hyperesthesia in the left lower extremity. It was indicated that he was not able to walk without assistance. On a special examination for purposes of housebound and aid and attendance, it was noted that the appellant was accompanied to the examination. He was in a wheelchair. An evaluation of the lower extremities revealed no muscle atrophy. Hyperreflexia in both legs was noted. Stiffness in the right leg with no good balance was indicated. Numbness in the left leg was noted. It was also indicated that he had poor balance with the left leg. He was able to perform self-care except to take a bath. A walker was required. On additional examination it was indicated that he had good control of the left leg with spastic paralysis of the right leg. He wore a brace on both legs. An unappealed rating determination by the RO on February 15, 1984, assigned separately rated service-connected residual disabilities whereas the prior ratings reflected a combined 100 percent evaluation. In particular, a 40 percent evaluation was assigned for incomplete paralysis of the left lower extremity in accordance with 38 C.F.R. Part 4, Diagnostic Code 8520. A 60 percent evaluation was assigned for spastic paralysis, right lower extremity in accordance with 38 C.F.R. Part 4, Diagnostic Code 8520. Additionally, entitlement to special monthly compensation on account of loss of use of the right lower extremity was awarded effective from March 1, 1983, under the provisions of 38 U.S.C. § 314(k) and 38 C.F.R. § 3.350(a) on account of loss of use of one foot. We note that special monthly compensation based on loss of use of both feet is predicated upon the evidence of record showing that, because of service-connected disability, a veteran has such lower extremity impairment that he would be equally well served for purposes of balancing and propulsion, etc., with the presence of an amputation stump and suitable prosthetic appliance. 38 U.S.C. § 1114(k); 38 C.F.R. §§ 3.350(a), 4.63. Specifically, the provisions of 38 C.F.R. § 4.63, for loss of use of hand or foot, provide that for purposes of special monthly compensation, loss of use will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the foot whether the acts of balance and propulsion, etc. could be accomplished equally well by an amputation stump with prosthesis. (a) Extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches (8.9 centimeters) or more, will be taken to be loss of use of the foot. (b) Complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, accompanied by organic changes including tropic and circulatory disturbances and other concomitance confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot. Moreover, we note that, in accordance with the provisions of 38 U.S.C.A. § 1114(m) and 38 C.F.R. § 3.350(c) special monthly compensation is payable where a service-connected disability results in loss of use of both legs at a level, or with complications, preventing any natural knee action with prosthesis in place. Also, we note that the provisions of 38 C.F.R. Part 4, Diagnostic Code 8250 for paralysis of the sciatic nerve provided an 80 percent evaluation where there is complete paralysis such that the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. A 60 percent evaluation is provided for incomplete paralysis productive of severe impairment with marked muscular atrophy. Moderately severe incomplete paralysis is provided a 40 percent evaluation. A comprehensive analysis of the evidence on file at the time of the February 15, 1984, rating determination fails to reflect the degree of symptomatology required for special monthly compensation for loss of use of both lower extremities as contemplated within the pertinent law and regulations to the extent required for an analysis based on clear and unmistakable error. While he was granted special monthly compensation for loss of use of the right foot, we note that with respect to the left lower extremity the evidence did not suggest nor did any of the examiners state that such lower extremity was so functionally impaired that the veteran would be equally well served by an amputation stump at the site of election below the knee with use of suitable prosthesis. In addition, the record failed to objectively demonstrate findings of footdrop in either lower extremity at the time. Also, he had some capacity for balance, albeit poor, and propulsion remaining in the left foot. Moreover, the record was without objective findings demonstrating evidence consistent with criteria supporting loss of use of the left leg at a level or with complications consistent with preventing natural knee action with prosthesis in place. The fact that he was able to walk with assistive devices is inconsistent with the loss of use of the left leg preventing natural knee action. As it stands, the veteran's arguments on appeal are substantially outweighed by the by the bulk of the contradictory clinical data of record. Moreover, the veteran is not shown to be medically qualified to render any pertinent medical opinion. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Overall, the Board concludes that the evidence did not show loss of use of the left foot or the legs under the pertinent criteria. Therefore, the rating determination of February 15, 1984, was in accordance with statutory and regulatory provisions pertaining to special monthly compensation and consistent with and supported by the evidence and the correct facts as they were known at the time of the rating action. Accordingly, insofar as the rating determination did not grant entitlement to a higher level of special monthly compensation on the basis of loss of use of the feet or of one foot and one leg or of both legs, it was not clearly and unmistakably erroneous. III. Whether Clear And Unmistakable Error existed In The Rating Determination of April 2, 1987. With respect to the veteran's claim for special monthly compensation based on loss of use of both lower extremities based on clear and unmistakable error in the rating decision of April 2, 1987, we note that substance of the statutory and regulatory provisions pertaining to pertinent special monthly compensation provisions that were in effect at the time of the February 1984 rating determination had essentially remained unchanged from those considered at the time of the April 2, 1987 rating determination. Following receipt of the veteran's pertinent claim for entitlement to special monthly compensation along with increase ratings for service-connected disorders and special housing and automobile grants in late 1986, a rating determination dated April 2, 1987, essentially confirmed and continued the special monthly compensation in effect on account of loss of use of one foot based upon the evidence then of record. The evidence considered by the RO included a VA hospital summary reflecting the period of hospitalization from March 10 to March 20, 1986, for multiple sclerosis. It was noted as history that he had been doing well up until two weeks prior to admission to the hospital when he had some fever and sweating. One week prior to admission he had bilateral hand numbness. On hospital admission physical examination he had spastic paraparesis in both lower extremities. Coordination was described as clumsy, due to weakness. He was able to walk with Canadian crutches although it was noted that he may have some increased difficulty doing so, depending upon the amount of function that had returned in his upper extremities. Following discharge from the hospital he was seen at the VA neurology clinic in late April 1986 where it was noted that there was no change in his complaints or findings. On a report of a VA neurologic examination in January 1987, the veteran was described as a well-developed individual who, with assistance, could stand and walk a couple of steps with a weak and very spastic type of gait. Muscle strength in the lower extremity was approximated at between 25 to 50 percent of normal. Muscle tone was very much increased, and deep tendon reflexes were described as exaggerated with clonic ankle jerks and pathologic plantar reflexes. On sensory examination, there appeared to be diminished sensory perception for pain, vibration, and position sense over the lower extremities, but more so on the left. It was incidentally noted by the examiner that the veteran could attend to daily activities of living with a minimum of assistance and support. A comprehensive analysis of the evidence on file at the time of the April 1987 rating determination fails to reflect the degree of symptomatology required for special monthly compensation for loss of use of both feet or both legs or one foot and one leg as contemplated within the pertinent law and regulations to the extent required for an analysis based on clear and unmistakable error. While special monthly compensation for loss of use of the right foot was confirmed and continued based upon the findings of record, we note that with respect to the left lower extremity the evidence did not show nor did any of the examiners state that such lower extremity was so functionally impaired that the veteran would be equally well served by an amputation stump at the site of election below the knee with use of suitable prosthesis. Moreover, the record was without objective findings demonstrating evidence consistent with criteria supporting loss of use of one or both legs at a level or with complications consistent with preventing natural knee action with prosthesis in place. While the report of hospitalization in 1986 showed an exacerbation of symptoms with spastic paraparesis of both lower extremities, by the time of the VA examination in 1987, some function had apparently been restored. The veteran could stand without support and walk around the house with the aid of braces and a walker. His ability to perform these actions is not consistent with the absence of propulsive or balancing function of the left foot or of loss of use of the leg prefenting some natural knee function. Whether or not footbraces had been issued, the clinical evidence failed to objectively demonstrate findings of footdrop in either lower extremity at the time. As it stands, the veteran's arguments on appeal are substantially outweighed by the by the bulk of the contradictory clinical data of record. Moreover, the veteran is not shown to be medically qualified to render any pertinent medical opinion. Espiritu, 2 Vet.App. at 494. Overall, the Board concludes that the rating determination of April 2, 1987, was, with respect to loss of use of the right foot, in accordance with statutory and regulatory provisions pertaining to special monthly compensation and consistent with and supported by the evidence and the correct facts as they were known at the time of the rating action. Accordingly, the April 2, 1987, rating determination which did not grant entitlement to a higher level of special monthly compensation on the basis of loss of use of both feet or of one foot and one leg or of both legs was not clearly and unmistakably erroneous. IV. Loss Of Use Of A Creative Organ To warrant a grant of benefits sought, the evidence must show that the veteran, as a result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C.A. § 1114(k) (West 1991). Specifically, it must be shown that the veteran is, in fact, impotent, and that such impotence is the result of a service- connected disease or injury. We would observe the fact that the veteran has established service connection for impotency secondary to encephalomyelitis for which he was given a penile prosthesis. The veteran's argument is that despite the insertion of the penile prosthesis, he has never been fully restored to his original level of functioning. On a report of a VA psychiatric examination in June 1992 it was noted as history that the veteran's principal questions had to do with psychosocial factors relating to the use of penile prosthesis. It seemed to be a moot question at the present since he had not been able to have intercourse since 1985. Penile prosthesis was apparently placed in 1976 and functioned adequately before that time. In terms of the current questions, it was indicated that one could not identify particular psychosocial stressors related to the penile prosthesis or its lack of function in some years related to illness. No psychiatric diagnosis was listed. On a genitourinary examination in June 1992, it was noted that the status of the veteran's impotence was unchanged. He had penile prosthesis inserted in the past which he used for sexual intercourse. Diagnoses included impotence secondary to transverse myelitis or encephalomyelitis and functioning penile prosthesis. Based upon the aforementioned, the Board is of the opinion that the veteran's service-connected disorder was responsible for the impotence thereby leading to the implantation of a penile prosthesis. The sole question remaining, therefore, is whether the prosthesis in question has, in fact, restored use of the veteran's creative organ. In that regard, the Board has considered a nonprecedent opinion of the Office of the General Counsel, Department of Veterans Affairs, dated May 11, 1988, regarding statutory awards for the loss of use of a creative organ. In that opinion, it was stated that, in determining whether a penile prosthesis had restored the use of a creative organ, the Board should give proper consideration to the purpose of the statutory award. In so doing, the Board must determine whether the psychosocial factors have been mitigated by implantation of the apparatus, whether the veteran's physical integrity has been restored, and to what extent the inconvenience and residual dysfunction attending the use of the device is of consequence. In the case at hand, the Board is of the opinion that the service-connected impotence currently is not mitigated by the implantation of a penile prosthesis. In fact, the current evidence shows that despite the prosthesis, there is residual dysfunction, inasmuch as the penile implant has not "corrected" the veteran's impotency. The veteran has testified, and has reported as medical history, that despite implantation of the penile prosthesis, he has not experienced much help with his problem. Accordingly, the Board is of the opinion that the veteran has suffered, and continues to suffer from, the loss of use of a creative organ primarily due to service-connected disorder. Consequently, a grant of special monthly compensation based on such loss of use is in order. V. Increased Rating Evaluations are based, as far as practicable, upon the average impairment of earning capacity resulting from the disability. 38 U.S.C.A. § 1155 (West 1991). The average impairment is set forth in a VA schedule for rating disabilities as codified in 38 C.F.R. Part 4 (1994) which includes diagnostic codes which represent particular disabilities. The pertinent diagnostic code and provisions will be discussed below. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries. Generally, the degree of disabilities specified is adequate to compensate for a considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (1994). 38 C.F.R. Part 4, Diagnostic Code 7522 provides a 20 percent evaluation for deformity of penis with loss of erectile power. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31(1994). In this case, we note that the evidence of record as recently as a VA genitourinary examination in June 1992 shows history of loss of erectile power, but does not show deformity of the penis. Accordingly, the level of impairment required for a 20 percent evaluation has not been met. Consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the appellant. We find that the service- connected penile disorder does not more nearly approximate the required criteria for the next higher rating under the above- noted code provisions and, therefore, the lower rating is to be retained. 38 C.F.R. § 4.7 (1994). We also find that the evidence discussed herein does not show that the veteran's service-connected disability picture presents such an unusual or exceptional disability picture as to render impractical the application of the regular schedular standards. Accordingly, the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b) (1994) is not warranted. ORDER The February 15, 1984, rating determination which did not grant entitlement to a higher level of special monthly compensation on the basis of loss of use of both lower extremities was not clearly and unmistakably erroneous. The April 2, 1987, rating determination which did not grant entitlement to a higher level of special monthly compensation on the basis of loss of use of both lower extremities was not clearly and unmistakably erroneous. An increased (compensable) evaluation for penile prosthesis; status post impotency is denied. Special monthly compensation based on the loss of use of a creative organ is granted, subject to those regulations governing the award of monetary benefits. NANCY I. PHILLIPS Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.