Citation Nr: 0811804	
Decision Date: 04/10/08    Archive Date: 04/23/08

DOCKET NO.  04-34 425	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, 
South Carolina


THE ISSUES

1.  Entitlement to an initial compensable rating for obesity 
associated with service-connected dysthymia with post-
traumatic stress disorder (PTSD).

2.  Entitlement to an initial compensable rating for 
hypertension associated with obesity for the time period 
prior to May 12, 2003.

3.  Entitlement to an initial rating in excess of 10 percent 
for hypertension associated with obesity for the time period 
from May 12, 2003.

4.  Entitlement to an initial compensable rating for chronic 
foot pain with plantar fasciitis associated with obesity.  

5.  Entitlement to an effective date earlier than July 16, 
2003 for entitlement to special monthly compensation (SMC) 
under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a) on 
account of loss of use of a creative organ. 



REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. D. Deane, Counsel


INTRODUCTION

The veteran had active military service from June 1970 to 
August 1977 and from February 1983 to April 1984.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from rating decisions rendered in November 
1997, July 1998, August 2003, January 2004, April 2004, and 
August 2005 by the Department of Veterans Affairs (VA) 
Regional Office (RO) in Columbia, South Carolina.

During the course of this appeal, the veteran has perfected 
appeals as to the initial evaluations assigned for his 
service-connected obesity, hypertension, and foot 
disabilities.  See Fenderson v. West, 12 Vet. App. 119 
(1999).

In an April 2004 rating decision, the RO awarded a 10 percent 
rating for hypertension associated with obesity, effective 
May 12, 2003.  The appeal for a higher rating remains before 
the Board.  See AB v. Brown, 6 Vet. App. 35 (1993) (where a 
claimant has filed a notice of disagreement as to an RO 
decision assigning a particular rating, a subsequent RO 
decision assigning a higher rating, but less than the maximum 
available benefit, does not abrogate the pending appeal).  

The issues of entitlement to an initial rating in excess of 
10 percent for hypertension associated with obesity for the 
time period from May 12, 2003 and entitlement to an initial 
compensable rating for chronic foot pain with plantar 
fasciitis associated with obesity are addressed in the REMAND 
portion of the decision below and are REMANDED to the RO via 
the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  All notification and development action needed to fairly 
adjudicate each claim on appeal has been accomplished.

2.  Competent medical evidence demonstrates that the 
veteran's service-connected obesity associated with service-
connected dysthymia with PTSD is manifested by subjective 
complaints of overeating and increased appetite as well as 
continued findings of obesity and recommendations for weight 
loss.   

3.  For the time period prior to May 12, 2003, competent 
medical evidence demonstrates that the veteran's service-
connected hypertension was manifested by diastolic pressure 
that was predominantly 100 or more, or; systolic pressure 
that was predominantly 160 or more.

4.  An informal claim for service connection for erectile 
dysfunction secondary to antidepressant medications was 
received on May 14, 2003.

5.  The veteran's formal claim for entitlement to special 
monthly compensation under 38 U.S.C.A. § 1114(k) and 
38 C.F.R. § 3.350(a) on account of loss of use of a creative 
organ was received by VA on July 16, 2003.

6.  In a January 2004 rating decision, the RO granted 
entitlement to SMC under 38 U.S.C.A. § 1114(k) and 38 C.F.R. 
§ 3.350(a) on account of loss of use of a creative organ, 
effective from July 16, 2003.

7.  The evidence of record includes factually ascertainable 
evidence dated on June 14, 2002 that demonstrates entitlement 
to SMC under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a) 
on account of loss of use of a creative organ.

CONCLUSIONS OF LAW

1.  The criteria for an initial compensable rating for 
obesity associated with service-connected dysthymia with PTSD 
have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 
C.F.R. § 4.130, Diagnostic Codes 9599-9521 (2007).

2.  For the time period prior to May 12, 2003, the criteria 
for an initial 10 percent rating, but no higher, for 
hypertension have been met.  38 U.S.C.A. §§ 1155, 5107 (West 
2002); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2007).

3.  The criteria for an effective date from June 14, 2002, 
but no earlier, for the award of entitlement to SMC under 
38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a) on account of 
loss of use of a creative organ, have been met.  38 U.S.C.A. 
§ 5110 (West 2002 & Supp. 2006); 38 C.F.R. § 3.400 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VCAA

The provisions of the Veterans Claims Assistance Act of 2000 
(VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a), and as interpreted by the United States Court of 
Appeals for Veterans Claims (the Court) have been fulfilled.  
In this case, the veteran's claims for entitlement to service 
connection for obesity and for hypertension were received in 
February 1997 and February 1998.  The veteran's claim for SMC 
was received in July 2003.  He was notified of the provisions 
of the VCAA regarding service connection by the RO in 
correspondence dated in September 2002, July 2003, and 
November 2003.  These letters notified the veteran of VA's 
responsibilities in obtaining information to assist the 
veteran in completing his claims, identified the veteran's 
duties in obtaining information and evidence to substantiate 
his claims, and requested that the veteran send in any 
evidence in his possession that would support his claims.  In 
an August 2003 rating decision, the RO granted entitlement to 
service connection for obesity and for hypertension.  In a 
January 2004 rating decision, the RO granted entitlement to 
SMC under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a) on 
account of loss of use of a creative organ.  The veteran 
appealed the assignment of the initial evaluations assigned 
for his service-connected obesity and hypertension as well as 
the effective date assigned for his SMC award.  Thereafter, 
the claims were reviewed and a supplemental statement of the 
case was issued in June 2005.  See 38 C.F.R. §§ 3.102, 
3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. 
App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 
(2004).  See also Mayfield v. Nicholson, 19 Vet. App. 103, 
110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. 
Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 
537 (2006); Mayfield v. Nicholson (Mayfield III), 07-7130 
(Fed. Cir. September 17, 2007).

The claims for initial increased evaluations and for an 
earlier effective date for special monthly compensation are 
downstream issues from the grants of service connection and 
special monthly compensation.  See Grantham v. Brown, 114 
F.3d 1156 (1997).  VA's General Counsel has held that no VCAA 
notice was required for such downstream issues, and that a 
Court decision suggesting otherwise was not binding 
precedent.  See VAOPGCPREC 8-2003, 69 Fed.Reg. 25180 (May 5, 
2004); cf. Huston v. Principi, 17 Vet. App. 370 (2002).  The 
Board is bound by the General Counsel's opinion.  See 38 
U.S.C.A. § 7104(c) (West 2002).  While this logic is called 
into some question in a recent Court case, neither this case 
nor the GC opinion has been struck down.  See Dingess/Hartman 
v. Nicholson, 19 Vet. App. 473 (2006).

The veteran has been made aware of the information and 
evidence necessary to substantiate his claims and has been 
provided opportunities to submit such evidence.  A review of 
the claims file also shows that VA has conducted reasonable 
efforts to assist him in obtaining evidence necessary to 
substantiate his claims during the course of this appeal.  
Service treatment records, service personnel records, private 
treatment records, and all relevant VA treatment records 
pertaining to his service-connected obesity and hypertension 
disabilities and to his SMC claim have been obtained and 
associated with his claims file.  He has also been provided 
with multiple VA medical examinations to assess the current 
state of his service-connected obesity and hypertension 
disabilities as well as his genitourinary disability.  

Evidence of record indicates that the veteran was granted 
retirement disability benefits from the South Carolina 
Retirement System in April 2002.  The basis of the award was 
anxiety and depression.  The claims file also contains an 
August 2002 letter from the veteran, which reflects that he 
applied for benefits from the Social Security Administration 
(SSA) solely using information in his VA treatment records.  
However, as the record indicates that the veteran's SSA 
disability application was based solely on VA treatment 
records that are already part of the record and that he was 
awarded disability retirement that was not based in any way 
on the issues on appeal in this case, the Board finds that a 
remand for SSA records or records from the South Carolina 
Retirement Board for these issues is not necessary.  

Based on the foregoing, the Board finds that, in the 
circumstances of this case, any additional development or 
notification would serve no useful purpose.  See Soyini v. 
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to 
requirements in the law does not dictate an unquestioning, 
blind adherence in the face of overwhelming evidence in 
support of the result in a particular case; such adherence 
would result in unnecessarily imposing additional burdens on 
VA with no benefit flowing to the claimant); Sabonis v. 
Brown, 6 Vet. App. 426, 430 (1994) (remands which would only 
result in unnecessarily imposing additional burdens on VA 
with no benefit flowing to the claimant are to be avoided); 
Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (when there 
is extensive factual development in a case, reflected both in 
the record on appeal and the Board's decision, which 
indicates no reasonable possibility that any further 
assistance would aid the appellant in substantiating his 
claim, this Court has concluded that the VCAA does not 
apply).

Furthermore, the veteran has not identified any additional, 
relevant evidence that has not otherwise been requested or 
obtained.  He has been notified of the evidence and 
information necessary to substantiate his claims, and he has 
been notified of VA's efforts to assist him.  See Quartuccio 
v. Principi, 16 Vet. App. 183 (2002).  As a result of the 
development that has been undertaken, there is no reasonable 
possibility that further assistance will aid in 
substantiating his claims.  

II.  Initial Ratings

The severity of a service-connected disability is 
ascertained, for VA rating purposes, by the application of 
rating criteria set forth in VA's Schedule for Rating 
Disabilities, 38 C.F.R. Part 4 (2007) (Schedule).  To 
evaluate the severity of a particular disability, it is 
essential to consider its history.  See Schafrath v. 
Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2 
(2007).

Where there is a reasonable doubt as to the degree of 
disability, such doubt will be resolved in favor of the 
claimant.  See 38 C.F.R. §§ 3.102, 4.3 (2007).  In addition, 
where there is a question as to which of two disability 
evaluations should be applied, the higher evaluation will be 
assigned if the disability picture more nearly approximates 
the criteria required for that rating.  Otherwise, the lower 
rating will be assigned.  See 38 C.F.R. § 4.7 (2007).  

The Court has also held that, in a claim of disagreement with 
the initial rating assigned following a grant of service 
connection, separate ratings can be assigned for separate 
periods of time, based on the facts found.  See Fenderson v. 
West, 12 Vet. App. 119 (1999).

The Board further acknowledges that a claimant may experience 
multiple distinct degrees of disability that might result in 
different levels of compensation from the time the increased 
rating claim was filed until a final decision is made.  See 
Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 
2007).  The analysis in the following decision is therefore 
undertaken with consideration of the possibility that 
different ratings may be warranted for different time 
periods.  

As a final preliminary matter, the Board points out that, 
after the issuance of the June 2005 SSOC, copies of VA 
treatment records were associated with the veteran's claims 
file prior to certification of the appeal to the Board.  
After reviewing the evidence, the Board finds that it may 
proceed without remanding these claims to the RO because this 
additional evidence is duplicative of evidence the RO had 
already considered in the June 2005 SSOC or is not relevant 
to the issue on appeal.  These records simply continue to 
indicate that the veteran suffers from obesity and show 
continued recommendations for weight loss and are not 
relevant to the issue of entitlement to an initial 
compensable rating for hypertension associated with obesity 
for the time period prior to May 12, 2003.  See 38 C.F.R. §§ 
19.3, 19.37 (2007).

Obesity Associated with Dysthymia with PTSD

In an August 2003 rating decision, the RO awarded the veteran 
service connection and assigned an initial noncompensable 
rating for obesity associated with service-connected 
dysthymia with PTSD pursuant to 38 C.F.R. § 4.130, Diagnostic 
Codes 9599-9521, effective February 19, 1997.  

Laws and Regulations

The veteran's service-connected obesity does not have a 
specific diagnostic code.   When a veteran is diagnosed with 
an unlisted condition, it must be rated under an analogous 
diagnostic code.  The diagnostic code is "built-up" by 
assigning the first two digits from that part of the schedule 
most closely identifying the part of the body involved and 
then assigning "99" for the last two digits for all 
unlisted conditions.  See 38 C.F.R. § 4.27 (2007).  Then, the 
disability is rated by analogy under a diagnostic code for a 
closely related disability that affects the same anatomical 
functions and has closely analogous symptomatology.  See 38 
C.F.R. §§ 4.20, 4.27 (2007).  Therefore, his service-
connected obesity is rated according to the analogous 
condition of bulimia nervosa under Diagnostic Code 9521.

	(CONTINUED ON NEXT PAGE)




Rating Formula for Eating Disorders:
Ratin
g
Self-induced weight loss to less than 80 percent of 
expected minimum weight, with incapacitating episodes 
of at least six weeks total duration per year, and 
requiring hospitalization more than twice a year for 
parenteral nutrition or tube feeding
100
Self-induced weight loss to less than 85 percent of 
expected minimum weight with incapacitating episodes 
of six or more weeks total duration per year
60
Self-induced weight loss to less than 85 percent of 
expected minimum weight with incapacitating episodes 
of more than two but less than six weeks total 
duration per year
30
Binge eating followed by self-induced vomiting or 
other measures to prevent weight gain, or resistance 
to weight gain even when below expected minimum 
weight, with diagnosis of an eating disorder and 
incapacitating episodes of up to two weeks total 
duration per year
10
Binge eating followed by self-induced vomiting or 
other measures to prevent weight gain, or resistance 
to weight gain even when below expected minimum 
weight, with diagnosis of an eating disorder but 
without incapacitating episodes
0
Note: An incapacitating episode is a period during which bed 
rest and treatment by a physician are required. (Authority: 
38 U.S.C. 1155) 
See 38 C.F.R. § 4.130, Diagnostic Code 9521 (2007).

Factual Background and Analysis

After a review of the evidence, the Board finds that the 
evidence does not support the assignment of an initial 
compensable rating for obesity associated with service-
connected dysthymia with PTSD.

VA treatment records dated in October and December 1996 
indicated that the veteran was overweight and listed an 
assessment of obesity.  In an October 1997 VA psychiatric 
examination report, the veteran complained of increased 
appetite.  Additional VA treatment notes dated in February 
and March 1998 detailed findings of obesity and noted that 
the veteran refused being treated by the weight management 
clinic.  In an April 1998 VA psychiatric examination report, 
the veteran complained of increased appetite and indicated 
that he eats to relieve stress.  The examiner noted that 
depression is evidenced by significant weight gain and 
increase in appetite and listed a diagnosis of obesity.  

In an August 2000 VA PTSD examination report, the veteran 
indicated that overeating was caused by his depression.  The 
examiner reviewed the claims file and opined that the 
veteran's weight gain was a rather remote side effect of his 
sedentary experience.  While the examiner further noted that 
there was a clear cause and effect relationship between 
general depression and weight gain, he stated that the file 
did not show significant weight gain throughout the 16 years 
of emotional history.  

In an August 2000 VA gastrointestinal examination report, the 
veteran complained of gradual weight gain since 1984.  It was 
noted that his weight at service discharge was 185 pounds and 
currently 295 pounds.  The examiner indicated that there were 
no gastrointestinal complaints and no physical bases for the 
veteran's obesity.  The examiner noted that the veteran was 
obese, but not morbidly so, and had large frame and build.  
Assuming that the veteran's blood tests were normal, the 
examiner opined that one could assume that the veteran's 
depression and PTSD are the most likely cause of his obesity. 

In a June 2002 VA mental disorders examination report, the 
examiner noted that the veteran was overweight and opined 
that there was no convincing evidence to support a claim of 
direct cause between the veteran's service-connected 
dysthymic disorder and obesity.  It was further noted that 
lifestyle choices, genetics, and one's emotional world are 
all factors in weight problems.  

In a June 2002 VA hypertension examination report, the 
examiner detailed that the veteran weighed 301 pounds and was 
not compliant with diet and exercise.  He opined that the 
veteran's obesity was clearly related to his dysthymic 
disorder and PTSD.  Additional VA treatment records dated 
from January 2003 to April 2005 reflect continued findings of 
obesity, concerns about weight gain, and recommendations for 
weight loss refused by the veteran.  

The only rating for eating disorders addresses weight loss 
rather than weight gain.  VA has no diagnostic code for 
obesity.  While the rating criteria, for the most part looks 
at impairment caused by weight loss, there is a part of the 
rating code that could be used to rate obesity in that it 
addresses whether there are incapacitating episodes brought 
on by the eating disorder.  An incapacitating episode has 
been defined as a period during which bed rest and treatment 
by a physician are required.  There are indications that the 
veteran has resisted attempts to help him manage his weight.  
Objective medical findings clearly does not contain a 
diagnosis of an eating disorder or any findings of 
incapacitating episodes of up to two weeks total duration per 
year due to his service-connected obesity.  Hence, he does 
not meet the criteria for a compensable rating for obesity.  

For all the foregoing reasons, the veteran's claim for 
entitlement to initial noncompensable rating for obesity must 
be denied.  The Board has considered staged ratings, under 
Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. 
Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007), but 
concludes that they are not warranted.  Since the 
preponderance of the evidence is against this claim, the 
benefit of the doubt doctrine is not for application.  See 
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

B.  Hypertension Associated with Obesity

In an August 2003 rating decision, the RO awarded the veteran 
service connection and assigned an initial noncompensable 
rating for hypertension associated with obesity pursuant to 
38 C.F.R. § 4.104, Diagnostic Code 7101, effective February 
14, 1998.  

In an April 2004 rating decision, the RO awarded a 10 percent 
rating for hypertension associated with obesity, effective 
May 12, 2003.  However, the Board notes that the issue of 
entitlement to an initial rating in excess of 10 percent for 
hypertension associated with obesity for the time period from 
May 12, 2003 is discussed as part of the Remand below. 

Laws and Regulations

7101  Hypertensive vascular disease (hypertension 
and isolated systolic hypertension):
Rating
Diastolic pressure predominantly 130 or more
60
Diastolic pressure predominantly 120 or more
40
Diastolic pressure predominantly 110 or more, or; 
systolic pressure predominantly 200 or more
20
Diastolic pressure predominantly 100 or more, or; 
systolic pressure predominantly 160 or more, or; 
minimum evaluation for an individual with a history 
of diastolic pressure predominantly 100 or more who 
requires continuous medication for control
10
Note 1: Hypertension or isolated systolic hypertension must 
be confirmed by readings taken two or more times on at least 
three different days. For purposes of this section, the term 
hypertension means that the diastolic blood pressure is 
predominantly 90mm. or greater, and isolated systolic 
hypertension means that the systolic blood pressure is 
predominantly 160mm. Or greater with a diastolic blood 
pressure of less than 90mm.
Note 2: Evaluate hypertension due to aortic insufficiency or 
hyperthyroidism, which is usually the isolated systolic type, 
as part of the condition causing it rather than by a separate 
evaluation.
Note 3: Evaluate hypertension separately from hypertensive 
heart disease and other types of heart disease. 
See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2007).



Factual Background and Analysis

After a review of the evidence, the Board finds that the 
evidence does support the assignment of an initial 10 percent 
rating for hypertension associated with service-connected 
obesity.

VA treatment records note repeated findings of hypertension 
and include blood pressure readings dated February 1998 (left 
182/100 and right 170/100), and March 1998 (left 140/90 and 
right 142/92).  A June 1998 VA heart examination report 
revealed blood pressure findings of 170/100 standing and 
160/100 sitting.  Additional VA treatment notes dated from 
October 1999 to May 2000 listed a blood pressure reading of 
163/89 (noted to be from February 1998).  A June 2002 VA 
hypertension examination report revealed blood pressure 
findings of 210/110, 170/110, and 180/110.

During the time period from February 14, 1998 and prior to 
May 12, 2003, the Board finds that the veteran's hypertension 
symptomatology more nearly approximated the criteria for a 10 
percent rating under Diagnostic Code 7101.  The evidence of 
record during this time period clearly shows that the 
veteran's blood pressure readings have diastolic pressure 
that was predominantly 100 or more, or; systolic pressure 
that was predominantly 160 or more.

Although records include a few blood pressure readings with 
diastolic pressure readings of 110, competent medical 
evidence during this time period clearly does not support the 
assignment of a 20 percent rating, as the veteran's blood 
pressure readings are not shown to have diastolic pressure 
predominantly 110 or more or systolic pressure predominantly 
200 or more.  Consequently, entitlement to an initial 10 
percent rating, but no higher, for hypertension is warranted 
for the time period from February 14, 1998 and prior to May 
12, 2003.

C.  Both Disabilities

The Board acknowledges the veteran's contentions that his 
obesity and hypertension disabilities are more severely 
disabling.  However, as noted above, the veteran is not a 
licensed medical practitioner and is not competent to offer 
opinions on questions of medical causation or diagnosis.  See 
Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu 
v. Derwinski, 2 Vet. App. 492 (1992).

The Board also finds there is no evidence of any unusual or 
exceptional circumstances, such as marked interference with 
employment or frequent periods of hospitalization related to 
these service-connected obesity and hypertension disabilities 
that would take the veteran's case outside the norm so as to 
warrant the assignment of any extraschedular ratings during 
this time period.  Consequently, referral by the RO to the 
Chief Benefits Director of VA's Compensation and Pension 
Service, under 38 C.F.R. § 3.321, is not warranted.  See 
Bagwell v. Brown, 9 Vet. App. 337 (1996).

III.  Earlier Effective Date - Special Monthly Compensation

The law and regulations state generally that the effective 
date of an evaluation and award of pension, compensation or 
dependency and indemnity compensation based on an original 
claim, a claim reopened after final disallowance, or a claim 
for increase will be the date of receipt of the claim or the 
date entitlement arose, whichever is the later. 38 U.S.C.A. § 
5110(a); 38 C.F.R. § 3.400.

In the case of a claim for an increased rating, if an 
increase in disability occurred within one year prior to the 
date of claim, the increase is effective as of the date the 
increase was "factually ascertainable".  If the increase 
occurred more than one year prior to the claim, the increase 
is effective the date of claim.  If the increase occurred 
after the date of claim, the effective date is the date of 
increase.  See 38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 
Vet. App. 125 (1997); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 
(1998).  In making this determination the Board must consider 
all of the evidence, including that received prior to 
previous final decisions.  See Hazan v. Gober, 10 Vet. App. 
511 (1997).

The Board notes that a specific claim in the form prescribed 
by the Secretary must be filed in order for benefits to be 
paid to any individual under the laws administered by VA.  
See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151.  Any 
communication or action indicating an intent to apply for one 
or more benefits under the laws administered by VA from a 
claimant may be considered an informal claim.  Such informal 
claim must identify the benefit sought.  Upon receipt of an 
informal claim, if the formal claim has not been filed, an 
application form will be forwarded to the claimant for 
execution.  If received within one year from the date it was 
sent to the claimant, it will be considered filed as of the 
date of the receipt of the informal claim.  When a claim has 
been filed which meets the requirements of 38 C.F.R. § 3.151, 
an informal request for increase or reopening will be 
accepted as a claim.  See 38 C.F.R. § 3.155 (2007).

Once a formal claim for pension or compensation has been 
allowed, or a formal claim for compensation disallowed for 
the reason that the service-connected disability is not 
compensable in degree, receipt of an outpatient or hospital 
examination or date of admission to a VA or uniformed 
services hospital will be accepted as the date of receipt of 
an informal claim for increased benefits or an informal claim 
to reopen. Provided, the medical reports relate to 
examination or treatment of a disability for which service- 
connection has previously been established.  See 38 U.S.C.A. 
§ 501(a); 38 C.F.R. § 3.157(b)(1).

SMC under the provisions of 38 U.S.C.A. § 1114(k) is payable 
if a veteran, as the result of service-connected disability, 
has suffered the anatomical loss or loss of use of one or 
more creative organs.  See 38 C.F.R. § 3.350(a).

A determination of the proper effective date for the grant of 
SMC turns on a determination as to when the veteran's SMC 
claim was received, and a determination as to when it became 
factually ascertainable that an award for SMC for the loss of 
a creative organ was warranted.

In this case, a VA treatment record dated on February 19, 
1997 noted subjective complaints of difficulty with impotence 
secondary to Prozac.

A report of VA genitourinary examination conducted on June 
14, 2002 listed an assessment of erectile dysfunction 
secondary to antidepressant medications. 

In a written brief presentation dated on May 14, 2003, the 
veteran's representative discussed an inferred claim of 
entitlement to service connection for erectile dysfunction 
secondary to medication prescribed for a service-connected 
disability.

In a written statement received on July 16, 2003, the veteran 
claimed entitlement to special monthly compensation under 
38 U.S.C.A. § 1114(k) for loss of use of a creative organ.

Thereafter, in a January 2004 rating decision, the RO granted 
SMC for the loss of a creative organ effective July 16, 2003.

The veteran and his representative contend that he is 
entitled to an effective date prior to July 16, 2003 for the 
award of SMC based on loss of use of a creative organ because 
he experienced sexual dysfunction due to his service-
connected psychiatric disability as well as filed an informal 
claim for erectile dysfunction secondary to medication 
prescribed for a service-connected disability before that 
date.

Based upon the evidence of record, the Board finds the 
written brief presentation dated on May 14, 2003, which 
contains an inferred claim of entitlement to service 
connection for erectile dysfunction secondary to medication 
prescribed for a service-connected disability, can be 
accepted as an informal claim for SMC based on loss of use of 
a creative organ.  The Board finds, however, that the June 
14, 2002, VA genitourinary examination findings of erectile 
dysfunction secondary to antidepressant medications were 
received within one year prior to the date of the May 2003 
informal claim and are considered factually ascertainable 
evidence that the veteran suffered the loss of use of a 
creative organ as the result of his service-connected 
psychiatric disability.  There is also no evidence of an 
earlier unadjudicated formal or informal SMC claim and no 
earlier factually ascertainable objective medical evidence of 
loss of use of a creative organ as the result of his service-
connected psychiatric disability.

Therefore, an effective date from June 14, 2002, but no 
earlier, is warranted for the award of special monthly 
compensation under 38 U.S.C.A. § 1114(k) and 38 C.F.R. 
§ 3.350(a) on account of loss of use of a creative organ.

ORDER

Entitlement to an initial compensable rating for obesity 
associated with service-connected dysthymia with PTSD is 
denied.

For the time period prior to May 12, 2003, a 10 percent 
rating, but no higher, is granted for hypertension associated 
with obesity.

Entitlement to an effective date of June 14, 2002, but no 
earlier, is granted for the award of special monthly 
compensation under 38 U.S.C.A. § 1114(k) and 38 C.F.R. 
§ 3.350(a) on account of loss of use of a creative organ. 


REMAND

Unfortunately, a review of the veteran's claims file reflects 
that additional development of the claims for entitlement to 
an initial rating in excess of 10 percent for hypertension 
associated with obesity for the time period from May 12, 2003 
and for entitlement to an initial compensable rating for 
chronic foot pain with plantar fasciitis associated with 
obesity is warranted, even though such will, regrettably, 
further delay an appellate decision on the claims on appeal. 

The provisions of the Veterans Claims Assistance Act of 2000 
(VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a), and as interpreted by the United States Court of 
Appeals for Veterans Claims (the Court) is applicable to this 
appeal.  

During the pendency of this appeal, the United States Court 
of Appeals for Veterans Claims (hereinafter "the Court") in 
Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the 
VCAA notice requirements applied to all elements of a claim.

The Court also recently issued a decision in Vazquez-Flores 
v. Peake, 22 Vet. App. 37 (2008), concerning increased-
compensation claims and finding that section § 5103(a) 
requires, at a minimum, that the Secretary notify the 
claimant that, to substantiate a claim, the claimant must 
provide, or ask the Secretary to obtain, medical or lay 
evidence demonstrating a worsening or increase in severity of 
the disability and the effect that worsening has on the 
claimant's employment and daily life.  See Vazquez-Flores v. 
Peake, 22 Vet. App. 37 (2008).  Further, if the Diagnostic 
Code under which the claimant is rated contains criteria 
necessary for entitlement to a higher disability rating that 
would not be satisfied by the claimant demonstrating a 
noticeable worsening or increase in severity of the 
disability and the effect that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the Secretary must provide at 
least general notice of that requirement to the claimant.  
Additionally, the claimant must be notified that, should an 
increase in disability be found, a disability rating will be 
determined by applying relevant Diagnostic Codes, which 
typically provide for a range in severity of a particular 
disability from noncompensable to as much as 100 percent 
(depending on the disability involved), based on the nature 
of the symptoms of the condition for which disability 
compensation is being sought, their severity and duration, 
and their impact upon employment and daily life.  As with 
proper notice for an initial disability rating and consistent 
with the statutory and regulatory history, the notice must 
also provide examples of the types of medical and lay 
evidence that the claimant may submit (or ask the Secretary 
to obtain) that are relevant to establishing entitlement to 
increased compensation-e.g., competent lay statements 
describing symptoms, medical and hospitalization records, 
medical statements, employer statements, job application 
rejections, and any other evidence showing an increase in the 
disability or exceptional circumstances relating to the 
disability.  See Vazquez-Flores v. Peake, 22 Vet. App. 37 
(2008).  

Unfortunately, the veteran did not receive adequate notice of 
information concerning the VCAA in reference to the issues on 
appeal.  As the case is being remanded for additional 
development, appropriate action should be taken to ensure 
adequate VCAA notice as to the type of evidence necessary to 
substantiate the veteran's claims for entitlement to an 
initial rating in excess of 10 percent for hypertension 
associated with obesity for the time period from May 12, 2003 
and for entitlement to an initial compensable rating for 
chronic foot pain with plantar fasciitis associated with 
obesity is provided.

The Board notes that the veteran last had a VA podiatry 
examination in June 2004.  In a November 2005 VA Form 9, the 
veteran indicated that his bilateral foot disability had 
increased in severity since that time.  VA's statutory duty 
to assist the veteran includes the duty to conduct a thorough 
and contemporaneous examination so that the evaluation of the 
claimed disability will be a fully informed one.  See Green 
v. Derwinski, 1 Vet. App. 121, 124 (1991); see also Snuffer 
v. Gober, 10 Vet. App. 400 (1997).

To ensure that the record accurately reflects the current 
severity of the veteran's hypertension, the Board also finds 
that a more contemporaneous examination, with findings 
responsive to the applicable rating criteria, is needed to 
properly evaluate the veteran's claim for an initial rating 
in excess of 10 percent for hypertension for the time period 
from May 12, 2003.  See Caffrey v. Brown, 6 Vet. App. 377, 
381 (1995) (VA was required to afford a contemporaneous 
medical examination where examination report was 
approximately two years old); see also Green v. Derwinski, 1 
Vet. App. 121, 124 (1991).

In view of the foregoing, the Board finds that further 
examination of the veteran is necessary.  See 38 C.F.R. § 
5103A (West 2002); 38 C.F.R. § 3.159 (2007). Accordingly, the 
AMC/RO should arrange for the veteran to undergo a VA 
examination(s) at an appropriate VA medical facility to 
determine the severity of his service-connected hypertension 
and chronic foot pain with plantar fasciitis.

The AMC/RO should also obtain and associate with the claims 
file all outstanding VA records.  The claims file reflects 
that the veteran has received medical treatment from the VA 
Medical Center (VAMC) in Charleston, South Carolina; however, 
as the claims file only includes records from that facility 
dated up to August 2005, any additional records from that 
facility should be obtained.  The Board emphasizes that 
records generated by VA facilities that may have an impact on 
the adjudication of a claim are considered constructively in 
the possession of VA adjudicators during the consideration of 
a claim, regardless of whether those records are physically 
on file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); 
Bell v. Derwinski, 2 Vet. App. 611, 613 (1992)

Accordingly, in view of the foregoing discussion, the case is 
REMANDED for the following actions:

1.  The AMC/RO is to provide the veteran 
VCAA notice under 38 U.S.C.A. § 5103(a) 
and 38 C.F.R. § 3.159(b), that includes 
an explanation as to the information or 
evidence needed to substantiate his 
increased rating claims on appeal, as 
outlined by the Court in Dingess/Hartman 
v. Nicholson, 19 Vet. App. 473 (2006) and 
Vazquez-Flores v. Peake, 22 Vet. App. 37 
(2008).  

Concerning Vazquez-Flores, the AMC/RO 
should provide notice informing the 
claimant that he may submit evidence 
showing the effects of the worsening or 
increase in severity of his service-
connected foot and hypertension 
disabilities upon the his daily life and 
employment.  The AMC/RO should also 
provide notice of the specific criteria 
necessary for entitlement to a 
compensable disability rating for chronic 
foot pain with plantar fasciitis under 38 
C.F.R. § 4.71a, Diagnostic Code 5276 
(2007) and for entitlement to an initial 
rating in excess of 10 percent for 
hypertension under 38 C.F.R. § 4.104, 
Diagnostic Code 7101 (2007).

2.  The AMC/RO should contact the veteran 
and obtain the names, addresses and 
approximate dates of treatment for all 
medical care providers, VA and non-VA, 
that treated the veteran for his service-
connected chronic foot pain with plantar 
fasciitis and hypertension since August 
2005.  Of particular interest are any 
Charleston VAMC outstanding records of 
evaluation and/or treatment of the 
veteran's service-connected chronic foot 
pain with plantar fasciitis and 
hypertension, for the period from August 
2005 to the present. After the veteran 
has signed the appropriate releases, 
those records not already associated with 
the claims folder, should be obtained and 
associated with the claims folder.  All 
attempts to procure records should be 
documented in the file.  If the AMC/RO 
cannot obtain records identified by the 
veteran, a notation to that effect should 
be inserted in the file.  The veteran and 
his representative are to be notified of 
unsuccessful efforts in this regard, in 
order to allow the veteran the 
opportunity to obtain and submit those 
records for VA review.

3.  Once the foregoing development has 
been accomplished to the extent 
possible, the AMC/RO should schedule 
the veteran for a VA medical 
examination to assess the severity of 
his service-connected hypertension.  
All indicated tests and studies are to 
be performed.  Prior to the 
examination, the claims folder must be 
made available to the physician for 
review of the case.  A notation to the 
effect that this record review took 
place should be included in the report 
of the examiner.  The examiner is 
requested to indicate whether the 
veteran's diastolic pressure is: 
predominantly 130, 120, or 110, and 
whether the systolic pressure is 
predominantly 200 or more.  Adequate 
reasons and bases are to be provided in 
support of any opinion rendered.

4.  The AMC/RO should also schedule the 
veteran for a VA medical examination to 
assess the severity of his service-
connected chronic foot pain with plantar 
fasciitis.  All indicated tests and 
studies are to be performed.  Prior to 
the examination, the claims folder must 
be made available to the physician for 
review of the case.  A notation to the 
effect that this record review took place 
should be included in the report of the 
examiner.  

The examiner should indicate whether the 
veteran's chronic foot pain with plantar 
fasciitis is bilateral or unilateral and 
whether it is (i) mild; symptoms relieved 
by built-up shoe or arch support; (ii) 
moderate; weight-bearing line over or 
medial to great toe, inward bowing of the 
tendo achillis, pain on manipulation and 
use of the feet; (iii) severe; objective 
evidence of marked deformity (pronation, 
abduction, etc.), pain on manipulation 
and use accentuated, indication of 
swelling on use, characteristic 
callosities; or (iv) pronounced; marked 
pronation, extreme tenderness of plantar 
surfaces of the feet, marked inward 
displacement and severe spasm of the 
tendo achillis on manipulation, not 
improved by orthopedic shoes or 
appliances.

Further, the examiner should indicate 
whether, and to what extent, the 
veteran experiences functional loss 
during flare-ups of pain and/or 
weakness (to include with use or upon 
activity) as a result of his service- 
connected foot disability.  To the 
extent possible, the examiner should 
express such functional loss in terms 
of additional degrees of limited motion 
on both flexion and extension.  
Adequate reasons and bases are to be 
provided in support of any opinion 
rendered.

5.  The veteran must be given adequate 
notice of the date and place of any 
requested examination.  A copy of all 
notifications, including the address 
where the notice was sent must be 
associated with the claims folder.  The 
veteran is to be advised that failure to 
report for a scheduled VA examination 
without good cause shown may have adverse 
effects on his claim.

6.  After completion of the above and any 
additional development deemed necessary, 
the issues on appeal should be reviewed 
with consideration of all applicable laws 
and regulations.  If any benefit sought 
on appeal remains denied, the veteran and 
his representative should be furnished an 
appropriate supplemental statement of the 
case and be afforded the opportunity to 
respond.  Thereafter, the case should be 
returned to the Board for appellate 
review.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).


______________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs