Citation Nr: 0810639 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 03-18 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral pes planus. 2. Entitlement to service connection for lumbago, low back pain, and a herniated disc. 3. Entitlement to service connection for a bilateral knee disability. 4. Entitlement to an initial rating in excess of 50 percent for service-connected depressive disorder NOS. 5. Entitlement to an initial rating in excess of 10 percent for service-connected bilateral chest scars. 6. Entitlement to an initial compensable rating for service- connected erectile dysfunction. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The veteran served on active duty from August 1978 to February 1984. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO). In February 2002, the RO granted service connection for bilateral chest scars, evaluated as noncompensable (0 percent disabling). The veteran appealed, and in August 2002, the RO increased the veteran's evaluation for his service-connected bilateral chest scars to 10 percent. However, since this increase did not constitute full grants of the benefits sought, the increased rating issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). In October 2003, the RO granted service connection for depression, evaluated as 50 percent disabling, and erectile dysfunction, evaluated as noncompensable. In January 2004, the RO denied service connection for pes planus, a back condition, and a bilateral knee condition. In October 2007, the veteran was afforded a hearing before the undersigned, who is the Acting Veterans Law Judge rendering the determinations in these claims and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). During his hearing, held in October 2007, the veteran stated that he desired to withdraw his appeals on the issues of service connection for a bilateral hip condition, and an initial rating in excess of 30 percent for service-connected pseudofolliculitis barbae. See 38 C.F.R. § 20.702(e) (2007). Accordingly, these issues are not before the Board at this time. FINDINGS OF FACT 1. The veteran does not have pes planus that was caused or aggravated by active duty. 2. The veteran does not have lumbago, low back pain, or a herniated disc, that was caused or aggravated by active duty, or by a service-connected disability. 3. The veteran does not have a knee disability that was caused or aggravated by active duty, or by a service- connected disability. 4. The veteran's depressive disorder NOS has been manifested by complaints of being obsessed with his chest scars, and depression, with GAF scores of between 40 and 70; his psychiatric disorder has not resulted in occupational and social impairment with deficiencies in most areas. 5. The veteran's service-connected bilateral scars are productive of bilateral T-shaped scars that are 3/4-inch wide, 14 centimeters in length, slightly hypopigmented, with a grape-sized soft tissue deficit, a quarter-sized area at six o'clock on the right, and a dime-sized area on the left; but not functional loss. 6. The veteran does not have penile deformity. CONCLUSIONS OF LAW 1. Pes planus was not incurred or aggravated during service. 38 U.S.C.A. §§ 1111, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.306 (2007). 2. Lumbago, low back pain, and a herniated disc, were not incurred in or aggravated by the veteran's active military service, or a service-connected disability, nor may arthritis of the lumbar spine be presumed to have been so incurred. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2007). 3. A knee disability was not incurred in or aggravated by the veteran's active military service, or a service-connected disability. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2007). 4. The criteria for an initial evaluation in excess of 50 percent for depressive disorder NOS have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code 9435 (2007). 4. The criteria for an initial rating in excess of 10 percent for bilateral chest scars have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.102, 3.159, 3.321(b)(1), 4.7, 4.118, Diagnostic Codes 7801, 7804, and 7805 (as in effect prior to August 30, 2002, and thereafter). 5. The criteria for an initial compensable disability rating for service-connected erectile dysfunction have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.20, 4.31, 4.115b, Diagnostic Codes 7599-7522 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The veteran asserts that he is entitled to service connection for bilateral pes planus, lumbago, low back pain, and a herniated disc, and a bilateral knee disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, when "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." See 38 C.F.R. § 3.303(d). Service connection may also be granted for arthritis when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2007). Similarly, any increase in severity of a nonservice- connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice- connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the nonservice-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran's nonservice-connected disability by a service-connected disability, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322 (2007). The Board notes that 38 C.F.R. § 3.310, the regulation which governs claims for secondary service connection, has been amended recently. The intended effect of this amendment is to conform VA regulations to the Allen decision. 71 Fed. Reg. 52,744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(b)). Since VA has been complying with Allen since 1995, the regulatory amendment effects no new liberalization or restriction in this appeal. Claimants are presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that the injury or disease in question existed prior to service and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137. Only such conditions as are recorded in entrance examination reports are to be considered as "noted." Crowe v. Brown, 7 Vet. App. 238, 245 (1994). If evidence is submitted sufficient to demonstrate that a veteran's disorder pre-existed service, and underwent an increase in severity during service, it is presumed that the disorder was aggravated by service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is specific evidence that the increase in disability is due to the natural progress of the disease. Id. A. Pes Planus The veteran's service medical records include his entrance examination report, dated in December 1977, and associated documents, which show that the veteran denied a history of flat feet, and foot trouble. However, in two different parts of the report, he was noted to have moderate pes planus. Given the foregoing, the evidence is sufficient to show that the veteran had preexisting pes planus, and that such injury was "noted" upon entrance into service. Crowe. Therefore, the presumption of soundness does not attach, and need not be rebutted. See VAOPGCPREC 3- 2003, 69 Fed. Reg. 25178 (2004). In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been any measured worsening of the disability during service, and then whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). Temporary or intermittent flare- ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The presumption of aggravation is applicable only if the pre- service disability underwent an increase in severity during service. Id. at 296; see also Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The Board finds that the evidence in insufficient to show that the veteran's pes planus underwent an increase in disability during service. The veteran's service medical records show that in November 1980, he was treated for foot pain, at which time he was noted to have moderately flat feet. The assessment was metatarsalgia (service connection is in effect for bilateral metatarsalgia). The next relevant report is dated about 21/2 years later, in March 1983, and it notes a history of foot pain and discomfort that had been successfully treated. The provisional diagnosis is somewhat difficult to read, but appears to note symptomatic pes planus - metatarsalgia. The veteran's separation examination report, dated in November 1983, shows that he was noted to have pes planus with mild symptoms. As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 2002 and 2006, which shows that the earliest post-service medical evidence of treatment for pes planus is found in VA progress notes, dated in 2003. These reports note inter alia complaints of heel pain, a burning sensation in the soles of the feet, foot pain that was "secondary to flat feet," and obesity. A March 2003 VA progress note indicates that an X-ray of the feet contains an impression of normal calcaneal study, negative for plantar spurs. An April 2004 VA progress note shows that the veteran reported that he was employed as a barber, "which requires a person to be on his feet." In summary, the veteran's flat feet were noted to be "moderate" upon entrance into service, and "mild" upon separation from service, and the earliest post-service evidence of treatment for foot symptoms comes over 17 years after separation from service. Furthermore, there is no competent evidence of record to show that the veteran's preexisting pes planus was aggravated by his service. In this regard, the Board has considered a notation in a June 2004 VA progress note, that the veteran's "military career involved increased stresses on feet which caused mal alignments to occur." However, this notation is afforded no probative value, as it is clearly "by history" only, it makes no citation to the veteran's medical history, such as clinical findings during service, or thereafter, and it is not shown to have been based on a review of the veteran's C- file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.). Based on the foregoing, the Board finds that the veteran's pre-existing pes planus did not undergo an increase in disability during service. As the disability underwent no increase in severity during service, aggravation may not be conceded. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). B. Lumbago, Low Back Pain, Herniated Disc The veteran's service medical records do not show treatment for low back symptoms, or a diagnosis involving the lumbar spine. The veteran's separation examination report, dated in November 1983, shows that his spine was clinically evaluated as normal. The post-service medical evidence consists of VA and non-VA reports, dated between 2002 and 2006. This evidence includes VA progress notes, dated beginning in 2003, which show treatment for chronic low back pain. A VA progress note contains a notation indicating that the veteran's back pain is "probably" related to flat feet; other notes indicate that it is due to a herniated disc. See VA progress notes, dated in March and September of 2003, and February 2004. A June 2004 VA progress note indicates that the veteran has a small right central focal disc protrusion at L4-L5, and mild degenerative disease at L5-S1. A VA X-ray report, dated in March 2003, contains an impression noting narrowed lumbosacral interspace, with an otherwise unremarkable lumbar spine. A statement from B.D.M.C., D.C., dated in March 2003, states that "flat feet may have an effect on low back pain and degenerative joint disease," and that, "This condition, along with the stresses associated with military duty such as stair climbing and marching, can accelerate low back pain and disk degeneration and increase the chances for him having low back pain." A letter from B.D.M.C., D.C., dated in June 2003, states that he was been treating the veteran for a low back condition since August 1992 and January 1993, with additional treatment in 1995, 1997, 2000, and 2003. He asserts that the veteran has had a chronic low back condition for 11 years. With regard to the claim for service connection for lumbago, low back pain, and a herniated disc, the Board finds that this claim must be denied. The veteran was not treated for low back symptoms during service, and his spine was clinically evaluated as normal in his November 1983 separation examination report. Given the foregoing, a chronic condition is not shown during service. See 38 C.F.R. § 3.303. In addition, it appears that he began receiving treatment for low back symptoms in August 1992. This treatment comes at least seven years after separation from active duty service. This period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, there is no competent evidence showing that the veteran has a low back condition that is related to his service. In this regard, the March 2003 statement from B.D.M.C., D.C., is afforded no probative value, as it is vague, speculative, and is not shown to have been based on a review of the veteran's C-file. Prejean. Finally, there is no medical evidence to show that arthritis of the low back was manifest to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. Accordingly, service connection on a direct or presumptive basis is not warranted. However, the veteran's primary argument is that he has a low back disability due to his flat feet. In part I.A., the Board has determined that service connection is not warranted for flat feet, and there is no competent evidence associating a low back disability with a service-connected disability. Therefore, service connection for a low back disability secondary to flat feet, or a service-connected disability, is not warranted under 38 C.F.R. § 3.310; Allen. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. C. Bilateral Knee Disability The veteran's service medical records do not show treatment for knee symptoms, or a diagnosis involving the knees. The veteran's separation examination report, dated in November 1983, shows that his lower extremities were clinically evaluated as normal. The post-service medical evidence consists of VA and non-VA reports, dated between 2002 and 2006. This evidence includes a June 2004 VA progress note indicates that the veteran has knee pain due to flat feet, which has caused mal-alignment and "compensatory strategies." He was also noted to have LCL (lateral collateral ligament) slippage. The Board finds that the claim must be denied. The veteran was not treated for knee symptoms during service, and his lower extremities were clinically evaluated as normal in his November 1983 separation examination report. Given the foregoing, a chronic condition is not shown during service. See 38 C.F.R. § 3.303. In addition, it appears that he began receiving treatment for knee symptoms in 2002. This treatment comes at least 17 years after separation from active duty service. This period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs against the claim. Maxson. Furthermore, there is no competent evidence showing that the veteran has a knee condition that is related to his service. Accordingly, service connection on a direct basis is not warranted. However, the veteran's primary argument is that he has a knee disability due to his flat feet. In part I.A., the Board has determined that service connection is not warranted for flat feet, and there is no competent evidence associating a knee disability with a service-connected disability. Therefore, service connection for a low back disability secondary to flat feet, or a service-connected disability, is not warranted under 38 C.F.R. § 3.310; Allen. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. D. Conclusion In reaching these decisions, the Board has considered a number of the articles submitted in support of the claims, which indicate that flat feet may cause joint disorders that include the low back and the knee. However, the Board has determined that service connection is not warranted for flat feet/pes planus, and the Board finds that overall, this literature is so general in nature, and nonspecific to the appellant's case, that the Board affords it little probative weight, as none of it discusses generic relationships to such a degree of certainty that, under the facts of this case, they provide sufficiently probative medical evidence demonstrating a causal relationship between any of the claimed conditions and service, or a service-connected disability to warrant a grant of the claims. See e.g. Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Accordingly, the claims for service connection must be denied. The Board considered the applicability of "benefit of the doubt" doctrine, however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of these matters on that basis. 38 U.S.C.A. § 5107(b). II. Increased Initial Evaluations The veteran asserts that he is entitled to an initial rating in excess of 50 percent for service-connected depressive disorder NOS, an initial rating in excess of 10 percent for service-connected bilateral chest scars, and an initial compensable rating for service-connected erectile dysfunction. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2005); 38 C.F.R. Part 4 (2007). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). A. Depressive Disorder NOS The RO has evaluated the veteran's depressive disorder under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9435. Under DC 9435, a 50 percent evaluation is warranted for: occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted for: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. The Global Assessment of Functioning (GAF) scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) (DSM-IV). A GAF Score of 41 to 50 denotes serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF Score of 51 to 60 denotes moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF Score of 61 to 70 denotes some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Id., at. 47. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The veteran was not treated for psychiatric symptoms during service. Rather, in an October 2003 rating decision, the RO granted service connection for a depressive disorder under 38 C.F.R. § 3.310. More specifically, the RO granted service connection for a depressive disorder as secondary to service- connected bilateral chest scars. The veteran was shown to have undergone surgery for gynecomastia during service, and he subsequently complained that he was depressed due to the residual scarring. In this regard, the medical evidence also contained notations of "body dismorphic disorder," and indicated that the veteran had bilateral T-shaped scars that were 3/4-inch wide, slightly hypopigmented, with a grape-sized soft tissue deficit, and were characterized as "a slight physical anomaly." See May 2003 VA progress note. Other VA progress notes noted that the scars were 14 centimeters in length, well-healed, with minimal scar formation inferior to the nipple bilaterally, with a quarter-sized area at six o'clock on the right, and a dime-sized area on the left, symmetrical breasts, no masses, minor nerve disruption. One examiner commented, "His plastics repair truly looks great compared to many that I have seen in the past." See VA progress notes, dated in April and October of 2003. In addition, service connection is in effect for erectile dysfunction, and he has reported poor self-esteem and failed marriages secondary to this. The post-service medical evidence consists of VA and non-VA reports, dated between 2002 and 2006. VA progress notes show ongoing treatment for psychiatric symptoms, primarily manifested by an obsession with his chest scars, as well as complaints of irritability, anhedonia, and social isolation, and feelings of worthlessness, and hopelessness. His medications included Wellbutrin. A psychiatric examination report from W.R.B., Jr., M.D., dated in June 2004, shows that the veteran complained of irritability, being reclusive, depression, and interrupted sleep. It was noted that he had no suicide attempts or panic attacks, a history of three marriages, and that he was using Wellbutrin and Citalopram. He stated that he lived with his mother and son, that he had no friends, that he was self- employed as a barber, and that he occasionally went to church or to the park. On examination, he was alert and cooperative, with no loose associations or flight of ideas. Mood was subdued and affect was appropriate. He denied nightmares, flashbacks, intrusive thoughts, and homicidal and suicidal ideation or intent. There were no delusions, hallucinations, ideas of reference, or suspiciousness. He was oriented times three. Remote and recent memory was good. Insight and judgment were adequate. The Axis I diagnoses were depressive disorder NOS, and body dismorphic disorder. The Axis V diagnosis was a GAF score of 50. A psychiatric examination report from K.M., M.D., dated in November 2005, shows that the veteran complained of depression, being obsessed with his chest scars, and an inability to get an erection, poor sleep, isolation, decreased energy and motivation, and feelings of hopelessness and helplessness. He asserted that he had thoughts of suicide in the past. He stated that he worked part-time as a barber, with reduced hours due to depression. On examination, he was neatly and appropriately groomed. Eye contact was poor. Behavior was appropriate. He had normal psychomotor activity. Affect and mood were depressed. He was oriented to person, place, time, and the purpose of the exam. Recent and remote memory was intact. There were no delusions or hallucinations. He was obsessed with the way he looks, but had no obsessional rituals. There was no suicidal or homicidal ideation. Insight and judgment were fair. There was no history of panic attacks. Penile exams were noted to be normal, with no deformities. The Axis I diagnoses were depressive disorder NOS, and body dismorphic disorder. The Axis V diagnosis was a GAF score of 40. The Board finds that an evaluation in excess of 50 percent is not warranted. The veteran's symptoms are not sufficiently severe to have resulted in occupational and social impairment with reduced reliability and productivity, and the Board has determined that the preponderance of the evidence shows that the veteran's depressive disorder more closely resembles the criteria for not more than a 50 percent rating. The Board notes that while there is some evidence of symptoms as required for a 70 percent rating, specifically, work difficulty, and difficulty in adapting to stressful circumstances, the Board has determined that the preponderance of the evidence is that the veteran's depression more closely resembles the criteria for a 50 percent rating. The veteran's symptoms appear to be primarily manifested by an obsession with an area of the body that is normally covered, specifically, his chest scars. These scars have been found to be bilateral T-shaped scars that were 3/4-inch wide, slightly hypopigmented, with a grape- sized soft tissue deficit, and have been characterized as "a slight physical anomaly." He was assigned GAF scores of between 40 to 70, which suggests a wide range of symptoms, i.e., from mild symptomatology to impairment in reality testing or communication. In this regard, the Board finds that the lower GAF scores are not sufficiently supported by the accompanying findings to warrant an increased rating. See generally, Brambley v. Principi, 17 Vet. App. 20, 26 (2003) (indicating that although a GAF Scale score may be indicative of a certain level of occupational impairment, it is only one factor in determining an appellant's degree of disability). Specifically, there is no evidence of obsessional rituals which interfere with routine activities; speech that was intermittently illogical, obscure, or irrelevant (his speech was unremarkable); near-continuous panic or depression affecting the ability to function independently, appropriately and effectively (there is no evidence of panic attacks); impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene. The evidence also shows that he has been found to be oriented, have an intact memory, with no delusions or hallucinations, and no suicidal or homicidal ideation. Insight and judgment have been characterized as "fair," and "adequate." Based on the foregoing, the Board finds that the evidence does not show that the veteran's symptoms are of such severity as to warrant a 70 percent rating. The Board concludes that the veteran's depressive disorder is not manifested by symptomatology that approximates, or more nearly approximates, the criteria for an evaluation in excess of 50 percent under DC 9435. See 38 C.F.R. § 4.7. B. Bilateral Chest Scars In February 2002, the RO granted service connection for bilateral chest scars, evaluated as noncompensable, with an effective date for service connection of December 27, 2000. The veteran appealed. In August 2002, the RO increased the veteran's evaluation to 10 percent, with an effective date for the 10 percent rating of December 27, 2000. The RO has evaluated this disability as 10 percent disabling, under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7804. Under DC 7804 (as in effect prior to August 30, 2002), a 10 percent evaluation is warranted for scars that are superficial, tender and painful on objective demonstration. The medical evidence for consideration consists of VA and non-VA medical reports, dated between 2002 and 2006. An examination report from G.B., M.D., dated in December 2002, shows that the veteran was shown to have a scar under his right breast that was three centimeters (cm.) long and three cm. broad at its widest spot, and that it tapered down to 1.5 cm. This scar was depigmented. There was a depressed area of tissue loss above the scar that measured 3 cm. x 3 cm. and which was not depigmented. On the left, there was a scar under the left breast that was 11 cm. long and one cm. wide, that was partially depigmented. It was covered in some places with keloid formation that was not very prominent. There was no underlying tissue loss. The scars were described as not tender on palpation, but disfiguring. The diagnosis was scars on chest with pigmentation loss. A VA progress note, dated in June and July of 2002, note that the veteran had bilateral "T" intramammary incisions that were well-healed, with some widening and hypertrophy. The veteran complained of itching. A September 2002 VA progress note indicates that there was some hypopigmentation, and that the scars were flattened and widened. A June 2003 letter from H.G.D., M.D., states that the veteran has a deficit of breast tissue in the lower portion of the right breast which cannot be corrected. VA progress notes, dated in 2003, show that the veteran had bilateral T-shaped scars that are 3/4-inch wide, 14 centimeters in length, slightly hypopigmented, with a grape-sized soft tissue deficit, a quarter-sized area at six o'clock on the right, and a dime-sized area on the left. His scars have been found to be well-healed, with minimal scar formation inferior to the nipple bilaterally, symmetrical breasts, no masses, minor nerve disruption. His scars have been characterized as "a slight physical anomaly." Another examiner stated, "the results of his gynecomastia repair are acceptable." Finally, another examiner noted, "His plastics repair truly looks great compared to many that I have seen in the past." See VA progress notes, dated in April, May, and October of 2003. A September 2003 examination report from G.T.B., M.D., shows that on examination, the veteran was found to have a 3 cm. x 3 cm. scar with definite tissue loss below the right nipple, and below, a horizontal 13 cm. scar. Under the left breast there was a 3 cm. scar, and below, a horizontal 11 cm. scar. When he lifted his arms the right nipple was higher than the left. The RO has evaluated the veteran's scars as 10 percent disabling under DC 7804. The Board initially notes that the 10 percent rating is the maximum rating provided for under DC 7804 (as in effect prior to August 30, 2002). A compensable rating is not warranted under any other potentially applicable code. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7801 (as in effect prior to August 30, 2002), a 30 percent evaluation is warranted for third degree burn scars of an area or areas exceeding 12 square inches (77.4 cm. squared). Under 38 C.F.R. § 4.118, DC 7805 (as in effect prior to August 30, 2002), other scars will be rated on limitation of function of the part affected. A rating in excess of 10 percent is not warranted under DC 7801 or 7805 (as in effect prior to August 30, 2002). The evidence fails to show that his scar is productive of a limitation of function. Furthermore, the evidence does not show that the veteran has third degree burns, or that his scars exceed 12 square inches. Therefore, the criteria for a rating in excess of 10 percent are not shown to have been met under DC 7801 or 7805 (as in effect prior to August 30, 2002). The regulations for evaluation of skin disabilities were revised, effective on August 30, 2002. 67 Fed. Reg. 49590 (July 31, 2002). In Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit overruled Karnas v. Derwinski, 1 Vet. App. 308 (1991), to the extent it conflicts with the precedents of the Supreme Court and the Federal Circuit. See Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991) (The Court of Appeals for Veterans Claims held that where the law or regulations change while a case is pending, the version most favorable to the claimant applies, absent Congressional intent to the contrary). In VAOPGCPREC 7-2003, the General Counsel held that Karnas is inconsistent with Supreme Court and Federal Circuit precedent insofar as Karnas provides that, when a statute or regulation changes while a claim is pending before the VA or a court, whichever version of the statute or regulation is most favorable to the claimant will govern unless the statute or regulation clearly specifies otherwise. The General Counsel held that the rule adopted in Karnas no longer applies in determining whether a new statute or regulation applies to a pending claim. The General Counsel indicated that pursuant to Supreme Court and Federal Circuit precedent, when a new statute is enacted or a new regulation is issued while a claim is pending before VA, VA must first determine whether the statute or regulation identifies the types of claims to which it applies. If the statute or regulation is silent, VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely retroactive effects. If applying the new provision would produce such retroactive effects, VA ordinarily should not apply the new provision to the claim. If applying the new provision would not produce retroactive effects, VA ordinarily must apply the new provision. VAOPGCPREC 7-2003. Under 38 C.F.R. § 4.118, DC 7801 (scars other than scars of the head, face, or neck, that are deep or cause limited motion) (as in effect August 30, 2002), a 20 percent evaluation is warranted for an area or areas exceeding 12 square inches (77 square centimeters). Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (1). A deep scar is one associated with underlying soft tissue damage. Note (2). Under 38 C.F.R. § 4.118, DC 7805 (as in effect August 30, 2002), scars, other, are to be evaluated based on limitation of function of the affected part. Here, the medical evidence does not reflect that the manifestations required for an evaluation in excess of 10 percent are present under the revised criteria. As previously noted, there is no medical evidence to show that the veteran's scars exceed 12 square inches. With regard to DC 7805, the Board's earlier discussion of this diagnostic code (which is unchanged from August 2002), is incorporated herein. Briefly stated, there is no evidence to show that his scars are productive of a limitation of function. Therefore, the criteria for a rating in excess of 10 percent are not shown to have been met under DC 7801 or 7805 (as in effect August 30, 2002). Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. Section 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. Thus, the Board has reviewed the entirety of the disability picture, but finds that it is not so exceptional or unusual as to render impractical the application of the regular schedular criteria. For this reason, the Board finds no basis to refer this case for consideration of an extraschedular rating. After careful consideration of the evidence the Board finds that the criteria for an evaluation in excess of 10 percent have not been met under either the old or the new criteria, and that the claim must be denied. C. Erectile Dysfunction The veteran asserts that a compensable evaluation is warranted for his erectile dysfunction. He asserts that his penis will retract/ "suck up into his body," that he cannot achieve an erection, and that he cannot have sex anymore. See e.g., veteran's statement, received in May 2004; June 2004 psychiatric examination report; November 2005 psychiatric examination report. As for the history of the disability in issue, the veteran's service medical records show that in 1982, he was treated for venereal warts several times. He was provided with topical medication and on one occasion there was apparently some confusion as to when it should be washed off, and the veteran subsequently complained of painful burning. The assessments noted a condylomata acuminata, venereal warts, and "secondary infection, probably staph." The records indicate that photographs were taken, however, no photographs are associated with the service medical records. In 1983, he complained that he had a constriction at the base of his penis, although he indicated that he could have intercourse without problems. The impression was possible penis constriction with erection. In October 2003, the RO granted service connection for erectile dysfunction, evaluated as noncompensable, with an effective date for service connection of March 3, 2003. There is no specific disability rating for erectile dysfunction, and the RO has evaluated the veteran's erectile dysfunction under 7599-7522. See 38 C.F.R. § 4.27 (2007) [hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen]. The use of DC 7599 represents an unlisted disability that required rating by analogy to one of the disorders rated under 38 C.F.R. § 4.115b. Id. The hyphenated diagnostic code in this case indicates that a disability of the genitourinary system under Diagnostic Code 7599 is the service-connected disorder, and it is rated as if deformity of the penis with loss of erectile power under Diagnostic Code 7522 were the residual condition. The Board can find no other diagnostic code provision that would be more appropriate in rating the veteran's disability. There is no evidence that he has had removal of half or more of his penis, or that glans have been removed, such that would warrant consideration under Diagnostic Codes 7520 or 7521, respectively. Therefore, Diagnostic Code 7522 is most appropriate to rate this disability. Pursuant to Diagnostic Code 7522, two distinct elements are required for a compensable, 20 percent, disability rating: penile deformity and loss of erectile power. The relevant medical evidence consists of VA and non-VA medical reports, dated between 2002 and 2006. This evidence includes a VA progress note, dated in March 2003, which shows complaints of penile contraction that occurred on a random basis, not necessarily during intercourse, with no problems maintaining or sustaining an erection or diminished sex drive. There were no relevant findings. The relevant assessment noted possible penile muscle spasms. A VA progress note, dated in February 2005, notes that the veteran complained that he upon erection he had a tightness along the shaft, and that his penis "draws up." He denied curvature, and stated that at times he was able to get an erection that was sufficient for penetration. On examination, the veteran had normal genetalia and circulation, no penile lesions, no plaque, and that the testes were descended bilaterally. The note states that it was suspected that the veteran had a psychogenic component to his erectile dysfunction, and the assessment was "erectile dysfunction - psychogenic." An examination report from Dr. G.T.B., dated in September 2003, shows that the veteran asserted that he had penile deformity with erectile dysfunction, that his penis had shrunk, and that he had difficulty getting an erection. He reported a history of urinary tract infections in 1982 and 1986. He indicated that he had erections once a week, that resulted in 60 days of lost time from work. On examination, the penis was normal. The left testicle was rather small, but the right was normal. The diagnosis was normal penis, with negative subjective or objective factors. In an addendum, the examiner stated that it was at least as likely as not that the veteran's condition was psychological, as there was no evidence of penis deformity. The Board finds that the claim must be denied. The evidence shows that the veteran has repeatedly reported experiencing impotence. However, the evidence shows that the veteran's penis and testes have been found to be within normal limits. He is able to achieve erections, and examiners have indicated that he has a psychogenic component to his erectile dysfunction. As the veteran is not shown to have both penile deformity and loss of erectile power, the Board finds that he is properly evaluated at the noncompensable level for erectile dysfunction. See 38 C.F.R. § 4.31 (2007). Furthermore, he has already been awarded special monthly compensation under 38 U.S.C. § 1114, subsection (k), 38 C.F.R. § 3.350(a), due to loss of use of a creative organ, so he is already being compensated for loss of use. In any event, a compensable rating is not warranted under Diagnostic Code 7522. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107(b). In reaching this decision the Board had also considered the issue of whether the veteran's service-connected erectile dysfunction, standing alone presents an exceptional or unusual disability picture, as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2007); Bagwell v. Brown, 9 Vet. App. 337, 338- 39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Significantly, no evidence has been presented showing factors not already contemplated by the rating criteria, due solely to the veteran's service-connected erectile dysfunction as to render impractical the application of the regular schedular standards. Accordingly, the regular schedular standards and the assigned noncompensable disability rating adequately compensates the veteran for any adverse impact caused by his erectile dysfunction. The Board finds that the criteria for submission for assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) are not met. III. Duties to Notify and Assist The Board finds that VA has satisfied its duties to the veteran under the Veterans Claims Assistance Act of 2000 (VCAA). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112 (2004). In April 2003 (service connection claims for pes planus, a low back disorder, and a bilateral knee disability), May 2004 (service connection for knee disability, and increased ratings for depression, and erectile dysfunction), October 2004 (increased evaluation for chest scars), and March 2005 (service connection claims, and increased evaluation for chest scars), the RO sent the veteran notice letters (hereinafter "VCAA notification letters") that informed him of his and VA's respective responsibilities for obtaining information and evidence under the VCAA. He was asked to identify all relevant evidence that he desired VA to attempt to obtain. The April 2003 VCAA notification letter was sent before the initial AOJ decisions on the service connection claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. Apr. 5, 2006). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. With regard to the claims for service connection, no further notice is needed as to any disability rating or effective date matters. As the claims have been denied, any questions as to the disability rating or the appropriate effective date to be assigned are moot. Therefore, VA's duty to notify the appellant has been satisfied, and no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). With regard to the claims for higher initial ratings, the Court, in Dingess, also stated the following: In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Id. at 491. Furthermore, the Court stated that once a claim for service connection has been substantiated, the filing of a notice of disagreement with the RO's decision does not trigger additional § 5103(a) notice. Id. at 493. While the veteran has not claimed that VA has not complied with the notice requirements of the VCAA, § 5103(a) and § 3.159(b)(1) are no longer applicable in the instant case. Service connection was granted in February 2002 (chest scars), and October 2003 (depression and erectile dysfunction), disability ratings were assigned, and effective dates were established. Therefore the veteran's claims were substantiated as of February 2002, and October 2003. Any error in failing to provide §5103(a) notice could not be prejudicial to the veteran because the purpose of §5103(a) notice is to provide notice of what is required for the veteran to substantiate his claim, and here, his claim has been substantiated. See Id. (holding that the Board does not commit prejudicial error in concluding that a VCAA-notice letter complied with § 5103(a) and § 3.159(b), where a claim for service connection has been substantiated, because such notice is not required). The Court also found that once a claim for service connection is substantiated VA's statutory duties are specified under § 5104 and § 7105, and applicable regulatory duties are found at 38 C.F.R. § 3.103. Id. VA satisfied these duties by issuance of complying rating decision in February 2002, and October 2003, the March 2003 and August 2004 statements of the case, and several supplemental statements of the case between 2004 and 2006. In October 2007, the veteran was afforded a hearing. Further, the record also shows that the veteran has actual knowledge of the evidence necessary to substantiate his claims for higher initial evaluations, based upon his arguments those presented by his representative. See e.g., May 2007 Informal Hearing Presentation. The Board further finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence. It appears that all known and available records relevant to the issues on appeal have been obtained and are associated with the veteran's claims files. The RO has obtained the veteran's available service medical records, as well as VA and non-VA medical records. Finally, the veteran has been afforded VA examinations as necessary. As to the claimed pes planus, the Board determines that a VA examination was not "necessary" for adjudication of the veteran's service connection claim. As discussed in greater detail above, the veteran's SMRs weigh against a finding that his disability underwent an increase in severity in service. As the Board finds this evidence and the post-service medical records sufficient to resolve this appeal, VA has no further duty to provide an examination or opinion. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Furthermore, as the claim for service connection for pes planus is being denied, VA has no further duty to provide an examination or opinion on the remaining claims for service connection. In essence, even if those disabilities were found to be secondary to his flat feet as he has claimed, service connection would not be warranted. The Board therefore concludes that decisions on the merits at this time do not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for bilateral pes planus is denied. Service connection for lumbago, low back pain, and a herniated disc, is denied. Service connection for a bilateral knee disability is denied. An initial rating in excess of 50 percent for service- connected depressive disorder NOS is denied. An initial rating in excess of 10 percent for bilateral chest scars is denied. An initial compensable rating for erectile dysfunction is denied. ____________________________________________ MICHAEL LANE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs