Citation Nr: 1227537 Decision Date: 08/09/12 Archive Date: 08/14/12 DOCKET NO. 07-17 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for hemorrhoids, to include as secondary to service-connected gastroesophageal reflux disease (GERD). 2. Entitlement to a disability rating in excess of 30 percent disabling for anxiety reaction. 3. Entitlement to an initial disability rating in excess of 30 percent for GERD. 4. Entitlement to an initial compensable disability rating for erectile dysfunction (ED). 5. Entitlement to an effective date prior to April 4, 2006, for the assignment of service connection for GERD. 6. Entitlement to an effective date prior to November 19, 2007, for the assignment of service connection for ED. 7. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD K. A. Kennerly, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to July 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). Procedural History By way of history, the Board notes that the Veteran originally filed a claim of entitlement to service connection for anxiety reaction in July 1974. A subsequent January 1975 rating decision granted the claim and assigned a 10 percent disability rating, effective from July 24, 1974, the day after the Veteran was discharged from active duty service. In January 2006, the Veteran filed a claim of entitlement to an increased disability rating for his anxiety reaction. A March 2006 rating decision granted the claim and increased the Veteran's disability rating from 10 percent to 30 percent disabling, effective January 5, 2006, the date of the Veteran's claim. The Veteran submitted a notice of disagreement (NOD) with respect to the assigned disability rating in May 2006, and timely perfected his appeal in May 2007. In April 2006, the Veteran filed a claim of entitlement to service connection for GERD, to include as secondary to his service-connected anxiety reaction. A December 2006 rating decision granted the claim and assigned a 10 percent disability rating, effective from April 4, 2006, the date of the Veteran's claim. The Veteran submitted a NOD in January 2007 with respect to the assigned disability rating, as well as with the effective date of the assignment. A subsequent rating decision was issued in May 2007, which increased the previously assigned 10 percent disability rating to 30 percent disabling, effective from April 4, 2006, the date of the Veteran's claim. A statement of the case (SOC) was also issued in May 2007 with respect to the increased rating claim as well as to the issue of effective date. Later that month, the Veteran timely perfected his appeal of these issues. In November 2007, the Veteran submitted a claim of entitlement to service connection for ED, to include as secondary to his anxiety reaction, as well as for Special Monthly Compensation (SMC) for loss of use of a creative organ. In October 2008, a rating decision granted the Veteran's claims, assigning a noncompensable disability rating for ED, effective from November 19, 2007, and awarding SMC. In November 2008, the Veteran submitted a NOD with the assignment of a noncompensable disability rating for his ED as well as the effective date of the assignment. A SOC was issued in December 2008 with respect to these two issues, and the Veteran timely perfected his appeal later that month. In November 2008, the Veteran submitted a claim of entitlement to service connection for hemorrhoids, to include as secondary to service-connected GERD. A May 2009 rating decision denied the Veteran's claim. The Veteran submitted a NOD with this determination in June 2009, and timely perfected his appeal in October 2009. In March 2010, the issues of entitlement to: (1) an increased disability rating for anxiety reaction; (2) an increased initial disability rating for GERD; (3) an effective date prior to April 4, 2006, for the assignment of service connection for GERD; (4) an increased initial disability rating for ED; (5) an effective date prior to November 19, 2007, for the assignment of service connection for ED; and (6) service connection for hemorrhoids, came before the Board. At that time, all of the aforementioned issues were remanded to the Appeals Management Center (AMC) as new evidence had been submitted without a waiver of RO consideration. A supplemental SOC (SSOC) was issued in December 2011, and the claims have since been returned to the Board for adjudication. Employability Additionally, in reviewing the Veteran's appeals for increased ratings, the Board has not overlooked the recent holding of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for TDIU when the appellant claims he is unable to work due to a service connected disability.) In this case, the Veteran has specifically stated that he is now unemployed or completely unemployable as result of the service-connected conditions on appeal. As such, the Board finds that Rice is applicable to the current appeal because the Veteran has specifically claimed that his service-connected disabilities prevent him from obtaining and/or maintaining employment. Referred Issues The issues of entitlement to service connection for: (1) major depressive disorder [see Veteran's Statement, March 11, 2010]; (2) night blindness; (3) dry eye syndrome; (4) acute conjunctivitis; (5) myopia; and (6) eye floaters, [see Veteran's Statement, March 9, 2010] have been raised by the record, but have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these claims and they are referred to the AOJ for appropriate action. Remanded Issues The issues of entitlement to: service connection for hemorrhoids; an increased disability rating for anxiety reaction; and TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, DC. The Veteran will be notified if any further action on his part is required. FINDINGS OF FACT 1. The Veteran's GERD is manifested by no more than symptoms such as dysphagia, esophageal distress, heartburn, nausea, and occasional mild substernal pain, and of less severity than the degree of impairment of health reflected in the criteria required for a 60 percent rating. 2. The Veteran's ED has resulted in a loss of erectile power that precludes vaginal penetration and ejaculation, but without penile deformity. 3. The Veteran's hypospadias is a congenital and/or developmental condition that is not subject to VA compensation. 4. The evidence of record does not demonstrate that the Veteran's service-connected GERD and/or ED are so exceptional or unusual that referral for extraschedular consideration by designated authority is required. 5. On January 18, 2006, VA received the Veteran's first claim of entitlement to service connection for GERD, and a preponderance of the evidence reflects that he had GERD at that time; a second claim of entitlement to service connection for GERD was received on April 4, 2006. 6. There was no pending claim prior to January 18, 2006, pursuant to which service connection for GERD could have been awarded. 7. In an October 2008 rating decision, the RO granted entitlement to service connection for ED and assigned an effective date of November 19, 2007, the date of the claim. 8. There was no pending claim prior to November 19, 2007, pursuant to which service connection for ED could have been awarded. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 30 percent for GERD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Codes 7399-7346 (2011). 2. The criteria for an initial compensable disability rating for ED have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.115b, Diagnostic Codes 9400-7522 (2011). 3. Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2011). 4. The criteria for an effective date of January 18, 2006, but not earlier, for the award of service connection for GERD have been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.156, 3.400 (2011). 5. The criteria for an effective date prior to November 19, 2007, for the assignment of service connection for ED, have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.156, 3.400 (2011). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's increased rating claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The claims of entitlement to increased disability ratings for GERD and ED arise from granted claims of service connection. The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a) (West 2002). Compliance with the first Pelegrini II element requires notice of these five elements in initial ratings cases. See Dunlop v. Nicholson, 21 Vet. App. 112 (2006). Prior to initial adjudication of the Veteran's claims, letters dated in May 2006 and January 2008 fully satisfied the duty to notify provisions, including notice of the degree of disability. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These letters also provided notice of the manner in which VA assigns initial ratings and effective dates. See Dingess/Hartman, supra. The Board is aware of the Court's decision in Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) [holding that for an increased-compensation claim, section § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA 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]. However, relying on the informal guidance from the VA Office of the General Counsel and a VA Fast Letter issued in June 2008 (Fast Letter 08-16; June 2, 2008), the Board finds that the Vazquez-Flores decision does not apply to the present case. According to VA Office of General Counsel, because this matter concerns an appeal from an initial rating decision VCAA notice obligations are fully satisfied once service connection has been granted. Any further notice and assistance requirements are covered by 38 U.S.C. §§ 5104(a), 7105(d)(1), and 5103A as part of the appeals process, upon the filing of a timely NOD with respect to the initial rating or effective date assigned following the grant of service connection. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2011) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his appellate claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The Board has also reviewed the Veteran's Virtual VA electronic claims file, to which no additional records have been added. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2011). The RO provided the Veteran with appropriate VA examinations in September 2006 and February 2009. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorders since he was last examined. See 38 C.F.R. § 3.327(a) (2011). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The VA examination reports are thorough and supported by VA outpatient treatment records. The examinations in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Additionally, the Board finds there has been substantial compliance with its March 2010 remand directives. The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the AMC reviewed the additional records submitted to VA after the issuance of the May 2007 SOC and the August 2009 SSOC. The AMC later issued a SSOC in December 2011. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claims based on the evidence that is of record. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. Earlier Effective Date Claims No VCAA notice is necessary with regard to the Veteran's earlier effective date claims because, as is more thoroughly explained below, the outcome of these claims depends exclusively on documents, which are already contained in the Veteran's claims file. The Court has held that a Veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide him with VCAA notice of the laws and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. See Nelson v. Principi, 18 Vet. App. 407, 410 (2004). No additional development could alter the evidentiary or procedural posture of this case. In the absence of potential additional evidence, no notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the claimant]. It is clear from the Veteran's communications that he is cognizant as to what is required of him and of VA. The Veteran has not indicated there is any outstanding evidence relevant to these claims. In addition, general due process considerations have been satisfied. See 38 C.F.R. § 3.103 (2011). The Veteran has been accorded ample opportunity to present evidence and argument on these matters. Accordingly, the Board will proceed to a decision. II. Initial Disability Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2011). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2011). Each disability must be considered from the point of view of the Veteran working or seeking work. See 38 C.F.R. § 4.2 (2011). Where there is a question as to which of two evaluations shall 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 (2011). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability there from, and above all, coordination of rating with impairment of function will, however, be expected in all instances. See 38 C.F.R. § 4.21 (2011). The Veteran's entire history is to be considered when making a disability determination. See generally 38 C.F.R. § 4.1 (2011); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has determined that when a Veteran takes issue with the initial rating assigned when service connection is granted for a particular disability, the Board must evaluate the relevant evidence since the effective date of the award and may assign separate ratings for separate periods of time based on facts found - a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107(b) (2011). In accordance with 38 C.F.R. §§ 4.1, 4.2 (2007) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to the disabilities. A. Gastroesophageal Reflux Disease (GERD) The Veteran contends that his currently assigned 30 percent disability rating does not adequately reflect the current symptomatology associated with his GERD. The Veteran's GERD has been rated under Diagnostic Codes 7399-7346. When a particular disability is not listed among the diagnostic codes, a code ending in "99" is used; the first two numbers are selected from the portion of the schedule most approximating a Veteran's symptoms. See 38 C.F.R. § 4.27 (2011). As the Veteran's GERD is not assigned a specific number, code 7399 is applied to allow for rating the disability with other disorders of the digestive system. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. See 38 C.F.R. § 4.27 (2011). In this case, Diagnostic Code 7399 refers to digestive disorders in general, while the more specific Diagnostic Code 7346 refers to hiatal hernias. Pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7346, a 10 percent evaluation is warranted when there is evidence of persistently recurrent epigastric distress manifested by two or more of the following symptoms (adding the qualifier that they be symptoms of "less severity"): dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal arm or shoulder pain which is productive of considerable impairment of health. A 30 percent evaluation is assigned based on evidence of all of these symptoms. A 60 percent evaluation is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. As noted above, the Veteran's GERD has been rated as 30 percent disabling since April 4, 2006, the date of his claim. The Board concludes that a disability rating in excess of 30 percent is not warranted for the entire appeal period. In May 2005, the Veteran was seen at S.P.C.S., with complaints of not being able to swallow. He also complained of gastrointestinal (GI) symptoms of indigestion, heartburn, and dysphagia. Following examination, he was diagnosed with diseases of the esophagus, i.e. esophageal reflux. See Private Treatment Records, S.P.C.S., May 17, 2005. Based on these findings, the Veteran was referred to D.H.G. for an esophagogastroduodenoscopy (EGD). The resulting EGD revealed an esophageal ring in the gastroesophageal junction as well as a normal stomach and normal duodenum. See Private Treatment Record, D.H.G., May 26, 2005. In April 2006, the Veteran again sought treatment from D.H.G., with complaints of nausea, abdominal pain, and diarrhea. He was noted as significant for GERD at that time. The examining physician noted that the Veteran's nausea, however, coincided with the Veteran starting Zoloft. See Private Treatment Record, D.H.G., April 20, 2006. The Veteran himself also submitted a personal statement, which noted that he had suffered from GI problems for at least 30 years, which he had treated with over-the-counter medication. He also experienced numerous episodes of chest pain, which were later determined to be GI symptoms. The Veteran endorsed numerous episodes of severe heartburn, regurgitation, and bloating after eating a meal. In April 2006, the Veteran stated that he had begun to experience nausea, loss of appetite, diarrhea, weight loss, dysphagia, abdominal pain, substernal and arm pain. See Veteran's Statement, April 20, 2006. In June 2006, the Veteran was seen in the F.C.H. Emergency Room, with complaints of chest pain. Following examination, it was determined that the Veteran's chest pain was attributable to a problem in the chest wall. See Private Treatment Record, F.C.H., June 19, 2006. Follow-up examination at S.P.C.S. noted that the onset of the Veteran's chest pain was acute. This pain was described as a spasm in the substernal area, precipitated by shoulder movement. There were no associated symptoms of dysphagia, dyspnea, nausea, or palpitations. See Private Treatment Record, S.P.C.S., June 28, 2006. The Veteran was afforded a VA examination in September 2006. At that time, the Veteran complained of difficulty swallowing, abdominal cramps, chest pain, and loss of appetite. An associated upper GI examination revealed a normal swallowing mechanism, no hiatal hernia, and no reflux. The Veteran's stomach and duodenum were normal. The impression was a normal upper GI examination. See VA Examination Report, September 26, 2006. In January 2007, the Veteran was seen at D.H.G., with complaints of lower abdominal pain and cramping in the morning, which began one week prior. The Veteran described the pain as generalized abdominal soreness. He noted that he had regular bowel movements and denied blood or black tarry stools. He also noted some symptoms of heartburn and indigestions. See Private Treatment Record, D.H.G., January 9, 2007. In March 2007, the Veteran complained of heartburn for one week, which did not radiate. Examination revealed normal bowel sounds. See Private Treatment Record, S.P.C.S., March 20, 2007. In May 2007, the Veteran submitted a statement from R.C.L., M.D., that diagnosed the Veteran with acid reflux exacerbated by gastroperesis. Dr. R.C.L. determined that this condition caused the Veteran considerable impairment of health due to the need to significantly modify his diet. See Statement of R.C.L., M.D., May 23, 2007. In September 2010, Dr. R.C.L. submitted a second letter on the Veteran's behalf that noted the same diagnoses of GERD and gastroparesis. Dr. R.C.L. stated that the severity of the Veteran's reflux condition and poorly functioning stomach caused severe and permanent impairment to his health. See Statement of R.C.L., M.D., September 17, 2010. Throughout the appeal period, the Veteran complained of periodic dysphagia, indigestion, heartburn and some substernal pain. None of the evidence of record indicates that the Veteran experienced additional symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia. Additionally, the Veteran's reported nausea was attributed to his beginning a new medication and not to his GERD. While the Board is aware of Dr. R.C.L.'s statements that the Veteran's GERD caused considerable impairment to his health, Dr. R.C.L. failed to provide any examples of how the Veteran's life was impacted by GERD, other than the Veteran's need to alter his diet. Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). As such, Dr. R.C.L.'s opinion is not afforded significant probative value. In summary, the Board finds that the Veteran's GERD resulted in symptoms contemplated by the previously assigned 30 percent disability evaluation. It did not result in vomiting, material weight loss, hematemesis, melena, or severe impairment of health. Thus, the Board concludes that the criteria for a disability rating in excess of 30 percent for the Veteran's GERD have not been met. See 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.24, 4.114, DC 7399-7346 (2011). The Board further finds that, since the effective date of service connection, there were no distinct periods of time during which the Veteran's disability was entitled to a higher disability rating. He is accordingly not entitled to receive a staged rating. See Fenderson, 12 Vet. App. at 119. As the preponderance of the evidence is against the claim for a higher initial disability rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the sake of economy, the Board will address the question of entitlement to an extraschedular disability rating in a common discussion below. B. Erectile Dysfunction The Veteran contends that his currently assigned noncompensable disability rating does not adequately reflect the current symptomatology associated with his ED. The Veteran's ED has been rated under Diagnostic Codes 9400-7522. The initial reference to Diagnostic Code 9400 refers to the Veteran's service-connected generalized anxiety reaction. The Board notes that there is no specific disability rating for ED. The closest analogous code is 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2011), which rates deformity of the penis with loss of erectile power. The Board can find no other diagnostic code that would be more appropriate in rating the Veteran's disability. There is no evidence that the Veteran 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. As the Veteran is not shown to have both penile deformity and loss of erectile power, the Board finds that a compensable evaluation for erectile dysfunction is not warranted. Furthermore, he has 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 in fact being compensated for loss of use. In any event, a compensable rating is not warranted under Diagnostic Code 7522. On genitourinary VA examination in February 2009, the Veteran reported that his ED began in March 1998. At the time of the examination, the Veteran stated that he could not achieve and maintain an erection. He further stated that his sexual dysfunction was caused by his psychological disorder. Treatment for his impotence had included oral medication. The impotence treatment did not include injections, implants, a pump, psychological consultation or surgery. He indicated that the treatment had not helped his sexual functioning. Rectal examination findings were normal, with no evidence of hemorrhoids, fissures, or masses. Examination of the prostate was within normal limits. Examination of the penis was abnormal, revealing hypospadias. Examination of the testicles revealed normal findings. See VA Examination Report, February 19, 2009. In the instant case, it is undisputed that the Veteran has ED affecting the quality of his erections as noted in the VA examination report and in the Veteran's statements. The rating criteria, however, also require deformity of the penis to warrant a compensable evaluation. Dorland's Medical Dictionary defines deformity as "distortion of any part or general disfigurement of the body; malformation." See Dorland's Illustrated Medical Dictionary 481 (30th ed. 2003). Thus, deformity refers to a malformation of the structure of the penis, while the loss of erectile power addresses internal problems with functionality. The Board has considered the Veteran's claim that the February 2009 VA examination demonstrates that he has a deformity of the penis. As noted above, the VA examination report noted that the Veteran had hypospadias. Dorland's Medical Dictionary defines hypospadias as "a developmental anomaly in which the urethra opens inferior to its usual location; usually seen in males with the opening on the underside of the penis or on the perineum. Id. at 898. Thus, hypospadias is a condition that is present at birth. As a matter of law, this condition is a congenital or developmental defect and thus is not considered a disability for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2011). The Board also has considered the Veteran's claims that he has a deformity of the penis. In that regard, the Veteran certainly can attest to factual matters of which he has first-hand knowledge, such as experiencing erectile dysfunction or some specific observable physical deformity to the penis, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In this case, however, the "deformity" the Veteran has referred to is one which he has had since birth that is not compensable for VA purposes. As such, the Board concludes that the most probative evidence of record weighs strongly against finding that he has any penile deformity for VA purposes. The Board certainly is extremely sympathetic to the Veteran's erectile problems and associated difficulties; however, as noted above, the currently 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, compensates the Veteran for these difficulties. The Board further finds that, since the effective date of service connection, there were no distinct periods of time during which the Veteran's disability was compensable. He is accordingly not entitled to receive a staged rating. See Fenderson, 12 Vet. App. at 119. As the preponderance of the evidence is against the claim for an initial compensable disability rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the sake of economy, the Board will address the question of entitlement to an extraschedular disability rating in a common discussion below. C. Extraschedular Consideration Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2011), Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111, 115 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's contentions have been limited to those discussed above, i.e., that his service-connected GERD and ED are more severe than reflected by the currently assigned ratings. See Brannon v. West, 12 Vet. App. 32 (1998) [while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant]. Moreover, the Veteran and his representative have not identified any factors which may be considered to be exceptional or unusual with respect to the service-connected GERD and ED and the Board has been similarly unsuccessful. The record does not show that the Veteran has required frequent hospitalizations for his service-connected GERD and ED. There is no unusual clinical picture presented, nor is there any other factor which takes the disabilities outside the usual rating criteria. In short, the evidence does not support the proposition that the Veteran's GERD and ED present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of extraschedular ratings under 38 C.F.R. § 3.321(b)(1) (2011). III. Effective Dates The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a), (b) (West 2002); 38 C.F.R. § 3.400(b) (2011). VA recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2011). An informal claim may be any communication or action, indicating an intent to apply for one or more benefits under VA law. See Thomas v. Principi, 16 Vet. App. 197 (2002). See 38 C.F.R. §§ 3.1(p), 3.155(a) (2011). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. See Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Although a claimant need not identify the benefit sought "with specificity," see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the Veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). See also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995) (noting that while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant). The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a Veteran's claim to its optimum. See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. See Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). A. GERD Here, the Veteran first filed an informal claim for service connection for GERD (or acid reflux disease secondary to his nervous condition) on January 18, 2006. The Veteran submitted a second claim of entitlement to service connection for GERD on April 4, 2006. The evidence reflects no request for service connection for GERD in any filings prior to January 18, 2006. Hence, there is not a single document of record, prior to January 18, 2006, that may be reasonably construed as a claim for service connection for GERD. See 38 C.F.R. §§ 3.151(a), 3.155(a) (2011). Since the Veteran's claim for service connection for GERD was received in 2006, more than one year following the Veteran's separation from service, as a matter of law, the effective date can be no earlier than the date of receipt of the claim. See 38 C.F.R. § 3.400(b)(2) (2011). In December 2006, the RO granted service connection for GERD, evaluated as 10 percent disabling effective April 4, 2006-based on the date of receipt of the Veteran's second claim. As noted above, there was a pending claim prior to April 4, 2006, pursuant to which benefits could be granted. A subsequent VA examination confirmed the diagnosis of GERD, and a preponderance of the evidence reflects it was secondary to the Veteran's service-connected anxiety reaction. Resolving all doubt in the Veteran's favor, the Board finds that GERD was present from the date of claim on January 18, 2006. Hence, the Veteran is entitled to an effective date of January 18, 2006, for the grant of service connection and compensation for GERD. In reaching this decision, the Board has resolved any doubt in favor of the Veteran. B. Erectile Dysfunction Based upon a complete review of the evidence on file, and for reasons and bases expressed immediately below, the Board finds that the currently assigned effective date of November 19, 2007, is the earliest effective date assignable for service connection for ED as a matter of law. As has been discussed above, the assignment of an effective date for service connection is in essence governed by the date of filing with VA of a claim therefore. See 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2011). The Board's inquiry thus is limited by operation of law to whether a claim of entitlement to service connection for ED was filed before the current effective date of the award in question, November 19, 2007. The Board has carefully reviewed the record and can identify no communication from the Veteran, which may reasonably be considered a claim of entitlement to service connection for ED prior to the claim received on November 19, 2007. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992) [the Board must look at all communications that can be interpreted as a claim, formal or informal, for VA benefits]. Though the Veteran contends that the effective date for his ED award should be March 27, 1998, the date he was originally diagnosed with ED, it is clear that at no time prior to the November 19, 2007 claim, did he submit a claim. It is clear that this is the proper effective date. To some extent, the Veteran appears to be raising an argument couched in equity, in that he contends that he evidenced ED long before he filed his claim, and he should be compensated therefore. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board has decided this case based on its application of this law to the pertinent facts. In summary, based on the evidence of record, the Board finds the preponderance of the evidence is against the claim of entitlement to an effective date earlier than November 19, 2007, for the grant of service connection for ED. The date of the Veteran's claim of entitlement to service connection for ED, as explained above, was November 19, 2007. There was no earlier claim pending. The benefit sought on appeal is accordingly denied. ORDER Entitlement to an initial disability rating in excess of 30 percent for GERD is denied. Entitlement to an initial compensable disability rating for ED is denied. An effective date of January 18, 2006, for the award of service connection for GERD is allowed, subject to the regulations governing the award of monetary benefits. Entitlement to an effective date prior to November 19, 2007, for the assignment of service connection for ED, is denied. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of his claims of entitlement to service connection for hemorrhoids, an increased disability rating for anxiety reaction, and TDIU. Waiver of AOJ consideration Under 38 C.F.R. § 20.1304(a), an appellant and his representative, if any, will be granted a period of 90 days following the mailing of notice to them that an appeal has been certified to the Board for appellate review and that the appellate record has been transferred to the Board, or until the date the appellate decision is promulgated by the Board, whichever comes first, during which they may submit additional evidence. Any additional evidence must be submitted directly to the Board and not to the AOJ. 38 C.F.R. § 20.1304(b)(1) sets forth the General Rule. Subject to the exception in paragraph (b)(2), following the expiration of the period described in paragraph (a) of this section, the Board will not accept additional evidence except when the appellant demonstrates on motion that there was good cause for the delay. Section (b)(2) notes that if the Board obtains evidence or considers law not considered by the AOJ, the motion described in paragraph (b)(1) is not required Under 38 C.F.R. § 20.1304(c), any pertinent evidence submitted by the appellant or representative, which is accepted by the Board must be referred to the AOJ for review, unless this procedural right is waived by the appellant or representative, or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral. Such a waiver must be in writing or, if a hearing on appeal is conducted, the waiver must be formally and clearly entered on the record orally at the time of the hearing. Evidence is not pertinent if it does not relate to or have a bearing on the appellate issue or issues. With respect to the Veteran's claim of entitlement to an increased disability rating for anxiety reaction, it appears that he was provided with a VA examination in April 2012, and that he also provided additional medical evidence to the Board. The AMC did not issue a SSOC, nor did the Veteran waive AOJ consideration. As such, this issue must be remanded back to the AMC for initial consideration. Adequacy of Examination The Board notes that in Jones v. Shinseki, 23 Vet. App. 382 (2010), the Court held that: "[I]n general, it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion. As the Secretary has acknowledged, this requirement inheres in the statutory equipoise rule as interpreted by the implementing regulation." See 38 U.S.C. § 5107(b) (West 2002); 38 C.F.R § 3.102 (2011) ("When, after careful consideration of all procurable and assembled data, a reasonable doubt arises . . . such doubt will be resolved in favor of the claimant." (emphasis added)). An examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion. However, a bald statement that it would be speculative for the examiner to render an opinion as to etiology or diagnosis is fraught with ambiguity. Thus, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Furthermore, VA must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is "based on sufficient facts or data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009). Therefore, it must be clear, from either the examiner's statements or the Board's decision, that the examiner has indeed considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis. See Daves v. Nicholson, 21 Vet. App. 46 (2007). Here, the Veteran was provided with a VA examination in September 2009 to determine the likely nature and etiology of his claimed hemorrhoids. The VA examiner stated that she could not find a causal relationship between the Veteran's service-connected GERD and his hemorrhoids, except by mere speculation. The VA examiner then went on to state that therefore, it was not at least as likely as not that the Veteran's hemorrhoids were secondary to his service-connected GERD. Initially, the Board notes that this conclusion is legally flawed. A VA examiner cannot find that a conclusion could not be rendered without resorting to mere speculation, and then determine that this is a negative finding without providing adequate reasons for such a determination, as explained above. See Jones, supra. The September 2009 VA examiner stated that the information needed to render a medical opinion would consist of a statement from the Veteran's treating physician that stated that a causal relationship existed between the Veteran's service-connected GERD and his hemorrhoids. The VA examiner did not conduct any independent research into this question, nor did she set forth her own opinion on the matter. The reason the Veteran was provided with a VA examination was to afford him an opportunity to be examined by a qualified and unbiased medical professional, who would then render a nexus opinion. This was clearly not accomplished in September 2009. Accordingly, the Veteran must be afforded a new VA examination for his hemorrhoids, with a different VA examiner. Employability As noted above, the Board has assumed jurisdiction of the Veteran's claim of entitlement to TDIU. The Veteran contends that the TDIU claim is inextricably intertwined with his claim of entitlement to an increased disability rating for anxiety reaction. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, consideration of the Veteran's claim of entitlement to TDIU will be deferred pending development of the remaining claims on appeal. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA medical records dated from September 29, 2011, to the present. Any response received in association with this request should be memorialized in the Veteran's claims file. 2. Contact the Veteran to determine whether he has received any additional private treatment for any of the claims currently on appeal, and if so, take steps necessary to obtain these records. If the requested records are unavailable, or the search otherwise yields negative results and further attempts to obtain these records would be futile, this must be documented in the claims file and the Veteran notified in accordance with 38 C.F.R. § 3.159(c)(2). 3. Thereafter, schedule the Veteran for a VA examination, with an appropriate expert, to determine the likely nature and etiology of his claimed hemorrhoids. The claims file and a complete copy of this Remand should be reviewed in conjunction with the VA examination and the examination report should reflect that this has been accomplished. The VA examiner is requested to specifically address the following: (a) State whether the Veteran has a current diagnosis of hemorrhoids. (b) State whether it is at least as likely as not (50 percent or greater probability) that any diagnosed hemorrhoids are the direct result of the Veteran's time in active duty service. (c) State whether it is at least as likely as not (50 percent or greater probability) that any diagnosed hemorrhoids are due to or the result of the Veteran's service-connected GERD. A complete rationale, with appropriate reference to relevant medical treatises and facts of this case should accompany the opinions provided. If it is not possible to provide these opinions without resulting to speculation, the reason that is so should be explained, including whether it is because of the limits of medical knowledge or there is a lack of necessary facts. 4. Thereafter, the AMC must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated. If the claims remain denied, a SSOC should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, these issues should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs