Citation Nr: 1300821 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 10-25 733 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a left hand/wrist disorder as secondary to service-connected lumbar spondylosis. 2. Whether new and material evidence has been received to reopen the claim of service connection for a bilateral eye disorder, to include refractive error. 3. Entitlement to an initial compensable rating for the service-connected?? erectile dysfunction disorder. 4. Entitlement to an initial disability rating greater than 30 percent for the service-connected?? posttraumatic stress disorder (PTSD). 5. Entitlement to an effective date earlier than December 18, 1998 for the grant of service connection for right leg shortening. 6. Entitlement to an effective date earlier than February 11, 2009 for the grant of special monthly compensation on account of loss of use of a creative organ. ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service in the U.S. Army from October 1967 to November 1969. The Veteran was awarded the Purple Heart Medal for sustaining combat wounds during his military service. The issues on appeal come to the Board of Veterans' Appeals (Board) from September 2008 and October 2009 rating decisions issued by the RO. The Veteran was scheduled for a hearing at the RO with the Board in January 2012. However, he failed to appear to the hearing. He has not explained his absence or requested to reschedule the hearing. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2012). A review of the Virtual VA paperless claims processing system reveals an additional VA psychiatric examination dated in December 2012, which is clearly pertinent to the present appeal for an increased rating for PTSD. The RO/AMC will have the opportunity to review this record and issue a Supplemental Statement of the Case (SSOC) prior to readjudicating the PTSD appeal. See 38 C.F.R. §§ 19.31(b), 19.37(a), (b) (2012). The Board will decide both earlier effective date issues, in addition to the issues of secondary service connection for a left hand/wrist disorder and an increased rating for the service-connected erectile dysfunction. Accordingly, the Board is remanding the issues of an increased rating for the service-connected PTSD and whether new and material evidence has been submitted to reopen the previously denied claim of service connection for a bilateral eye disorder to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The evidence does not establish that the Veteran's left hand/wrist was caused or worsened by his service-connected lumbar spine disability. 2. The Veteran experiences erectile dysfunction (loss of erectile power) associated with his lumbar spine disability, but there is no showing that this is due to physical deformity of the penis or atrophy of his testes. 3. The RO previously denied the Veteran's claim for an effective date earlier than December 18, 1998 for the grant of service connection for right leg shortening in a May 2003 rating decision and notified him of the denial and his appellate rights; he did not initiate an timely appeal. 4. In March 2008, the Veteran improperly filed a freestanding claim for an effective date earlier than December 18, 1998 for the grant of service connection for right leg shortening without asserting clear and unmistakable error in May 2003 rating decision denying that matter. 5. An effective date for secondary service connection for erectile dysfunction earlier than February 11, 2009 deemed to have been date of receipt of the petition to reopen is not assignable in this case. CONCLUSIONS OF LAW 1. The Veteran does not have a left hand/wrist disability that is proximately due to or the result of the service-connected lumbar spine disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 2. The criteria for the assignment of an initial compensable disability rating for the service-connected erectile dysfunction have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.20, 4.21, 4.27, 4.31, 4.115b including Diagnostics Code 7599-7522 (2012). 3. The Veteran's freestanding claim for an effective date earlier than December 18, 1998 for the award of service connection for right leg shortening must be dismissed. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2012); Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). 4. The criteria for the assignment of an effective date earlier than February 11, 2009 for the award of special monthly compensation for loss of use of a creative organ have not been met. 38 U.S.C.A. §§ 1114(k), 5101, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.102, 3.151, 3.155, 3.159, 3.160, 3.350(a), 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist For the earlier effective date for the right leg shortening issue, the VCAA has no effect on this effective date appeal since that resolution of this issue is solely one of statutory interpretation such that the claim is barred as a matter of law. 38 C.F.R. § 3.159(b)(3)(ii), (d); Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 2002). See, too, Sabonis v. Brown, 6 Vet. App. 426 (1994); VAOPGCPREC 5-2004 (June 23, 2004). For the earlier effective date for special monthly compensation, secondary service connection, and increased initial rating issues being denied, review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in February 2009, March 2009, June 2009, and July 2009. Those letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate the service connection, increased initial rating, and earlier effective date issues; (2) informing him about the information and evidence the VA would seek to provide; (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, the February 2009, March 2009, and July 2009 letters from the RO further advised the Veteran of the elements of a disability rating and an effective date, which are assigned when service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). This appeal partially arises from disagreement with the initial evaluation and effective date following the grant of service connection for erectile dysfunction and special monthly compensation in an October 2009 rating decision. Both the U.S. Court of Appeals for Veterans Claims (Court) and the Federal Circuit Court of Appeals have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). See also 38 C.F.R. 3.159(b)(3) (no duty to provide VCAA notice arises upon VA's receipt of a Notice of Disagreement), retroactively effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). With regard to timing, the Court and Federal Circuit Court have held that VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120. In the present case, the RO issued all required VCAA notice prior to the October 2009 rating decision on appeal. Thus, there is no timing error. Accordingly, prejudicial error in the timing or content of VCAA notice has not been established as any error was not outcome determinative. See Shinseki v. Sanders, 556 U.S. 396 (2009) (An error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis). With respect to the duty to assist, the RO has secured the Veteran's service treatment records (STRs), VA inpatient and outpatient treatment records, VA examinations, and private treatment records identified by the Veteran. For his part, the Veteran has submitted personal statements, additional VA records, medical treatise records, and private medical evidence. VA's duty to assist includes obtaining records of relevant VA medical treatment identified by the Veteran. VA must continue to obtain such records unless it is documented that the records do not exist or that further efforts would be futile. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive knowledge of evidence generated by VA). In the present case, the RO secured VA treatment records dated from 1999 to 2011 from the VA Medical Centers in Richmond, Virginia and Hampton, Virginia. In a May 2011 deferred rating decision, the RO indicated purported VA treatment records from North Carolina were not in the CAPRI system. There is no further basis to secure these alleged records, as a negative response was received. Furthermore, the Veteran failed to respond to a May 2011 letter requesting that he provide additional information regarding these treatment records. The Veteran was also afforded a July 2009 VA examination to rate the current severity of his erectile dysfunction disability. The need for a more contemporaneous examination occurs only when the evidence indicates that the current rating may be incorrect or when the evidence indicates there has been a material change in the disability. See 38 C.F.R. § 3.327(a); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83. Here, the July 2009 VA examination is not unduly remote. In addition, there is no suggestion that the evidence is not sufficient to evaluate the appeal. VA urology consults dated in January 2008 and March 2010 fail to reveal any deformity of the penis or atrophy of the testes that could entitle the Veteran to a higher rating. Thus, a new VA examination for the erectile dysfunction disability is not warranted by the evidence of record. The Board notes that no VA medical examination has been conducted or medical opinion obtained with respect to the left hand/wrist service connection claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). However, the standards of McLendon are not met in this case. There is no lay allegation or medical evidence of a left hand / wrist disorder during service or for decades thereafter. Further, there is neither medical evidence indicating that a current left hand /wrist disorder is linked to service, nor any credible evidence of continuity of symptomatology of a left hand /wrist disorder since service. The Veteran also contends that a current left hand / wrist disorder is secondary to his service-connected lumbar spine. However, the Federal Circuit Court has stated that "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that a service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide a VA examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). The Federal Circuit held that accepting the theory that medical examinations are to be routine and virtually automatically provided to all Veterans in disability cases would eliminate the carefully drafted statutory standards established by Congress governing the provision of medical examinations. Id. Here, the Veteran has provided no probative discussion or reasoning as to why his current left hand/wrist disorder is secondary to his service-connected lumbar spine arthritis. In summary, the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). Governing Laws and Regulations for Secondary Service Connection Service connection may be granted if it is shown the Veteran develops a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A disability can also be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a). Secondary service connection may be established by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(b), effective October 10, 2006. See 71 Fed. Reg. 52,744-52,747 (September 7, 2006). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. A claim for secondary service connection requires competent medical evidence linking the asserted secondary disorder to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998). See also Wallin v. West, 11 Vet. App. 509, 512 (1998) and McQueen v. West, 13 Vet. App. 237 (1999) (both indicating, like Velez, that competent medical nexus evidence is required to associate a disorder with a service-connected disability). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37. In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Analysis - Secondary Service Connection for a Left Hand Disorder The Veteran contends that he has a left hand/wrist disorder that is secondary to his service-connected degenerative arthritis of the lumbar spine. He does not provide any probative explanation as to why he believes a secondary relationship exists between the two disorders. See December 2008 claim. Upon review of the evidence of record, the Board denies the appeal for secondary service connection for a left hand/wrist disorder. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). The private X-ray studies dated in December 2008 revealed marked narrowing of the radiocarpal joint of the left wrist. The studies of the left hand were normal. Based on these findings, a private physician from Eastern Virginia Hand Center diagnosed osteoarthritis of the left wrist. Thus, the Veteran clearly has a current left wrist disorder. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. When determining service connection, all theories of entitlement, direct and secondary, must be considered by the Board if raised by the evidence of record, applying all relevant laws and regulations. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). However, claims which have no support in the record need not be considered by the Board, as the Board is not obligated to consider "all possible" substantive theories of recovery. That is, where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). In this respect, in the present case, the Veteran has not raised the issue of direct service connection for a left hand/wrist disorder. Moreover, there is no evidentiary support for service connection for a left hand /wrist disorder on a direct basis, as STRs dated from 1967 to 1969 are negative for any complaint, treatment, or diagnosis of a left hand/wrist disorder. The first lay or medical evidence of symptoms of a left hand/wrist disorder is from VA treatment records in the 2000s, many decades after service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is no lay allegation of continuity of symptomatology. There is also no medical evidence of a nexus between the Veteran's current left wrist disorder and his military service. Boyer, 210 F.3d at 1353; Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). Accordingly, on this record, the Board will only address the theory of secondary service connection when deciding the issue presented on appeal, as this is the only theory reasonably raised by the evidence of record. Robinson, 557 F.3d at 1361. With regard to secondary service connection, the Board finds there is simply no competent medical evidence of record that the Veteran's service-connected lumbar spine arthritis caused or aggravated a current left hand / wrist disorder. 38 C.F.R. § 3.310(a); Velez 11 Vet. App. at 158. No medical professional of record has provided an opinion to support the Veteran's general assertions of secondary service connection. Finally, without evidence showing that he has medical training or expertise, the Veteran is not competent to offer a medical opinion as to the existence of a secondary relationship in this particular case. See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). That is, the Veteran is indeed competent to describe and report the date of onset of his left hand/wrist symptoms, as well as his lumbar spine symptoms. However, he is not competent to state that his lumbar spine multiple joint arthritis caused or aggravated his left wrist disability. Only a medical professional can make that determination. Laypersons have been found to not be competent to provide evidence as to etiology in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Moreover, the Veteran has not offered any probative discussion as to why he believes a secondary relationship exists in this case. Accordingly, the preponderance of the evidence is against the Veteran's left hand/wrist claim on a secondary basis. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Governing Laws and Regulations for Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Analysis - Increased Rating for an Erectile Dysfunction Disorder In the October 2009 rating decision on appeal, the RO granted service connection for erectile dysfunction as secondary to the service-connected lumbar spine disability. The service-connected erectile dysfunction disorder is rated at a noncompensable level by analogy under 38 C.F.R. § 4.115b, Diagnostic Code 7599-7522, penis, deformity, with loss of erectile power. See 38 C.F.R. § 4.20 (when an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous). In every instance where the schedule does not provide a no percent evaluation for a diagnostic code, a no percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. See 38 C.F.R. § 4.31. Because the Veteran has perfected an appeal as to the assignment of an initial rating following the initial award of service connection for erectile dysfunction, this could result in "staged ratings" based upon the facts found during the period in question. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). That is to say, the Board must consider whether there have been times when his erectile dysfunction disorder has been more severe than at others. Id. In order for the Veteran to receive a higher 20 percent rating for erectile dysfunction, Diagnostic Code 7522 requires physical deformity of the penis with loss of erectile power. A footnote to Diagnostic Code 7522 also indicates the disability is to be reviewed for entitlement to special monthly compensation for loss of use of a creative organ under 38 C.F.R. § 3.350(a). Upon review of the evidence, the Veteran does not meet the criteria for a 20 percent rating under Diagnostic Code 7599-7522. 38 C.F.R. § 4.7. VA treatment records dated back to 2001 reveal a diagnosis of erectile dysfunction. A July 2009 VA examiner assessed that the erectile dysfunction was secondary to the service-connected lumbar spine. The Veteran clearly has loss of erectile power. This fact is not in dispute. However, the VA Adjudication Procedure Manual confirms that two requirements must be met before a 20 percent evaluation can be assigned for deformity of the penis with loss of erectile power under Diagnostic Code 7522 - (1) the deformity must be evident, and (2) the deformity must be accompanied by loss of erectile power. Simply stated, the condition is not compensable in the absence of penile deformity. See M21-1MR, Part III, Subpart iv, Chapter 4, Section I, Topic 34, Block b. In the present case, there is no lay allegation or objective medical evidence of any physical deformity of his penis. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). Here, the requirement under Diagnostic Code 7522 of deformity of the penis "with" loss of erectile power clearly means that both factors are required. In this regard, a January 2008 VA urology consult reflected a normal scrotum, testes, and genitalia. Similarly, a March 2010 VA urology note assessed a normal scrotum and phallus. Accordingly, there is no lay or medical support for a compensable disability rating for the Veteran's erectile dysfunction residuals. The Board notes that review of the regulations for evaluation of genitourinary conditions discloses no other diagnostic code that more appropriately reflects the disability at issue. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if supported by explanation and evidence). Concerning this, all VA examinations and VA treatment records in the claims folder are negative for evidence of testicular atrophy. See e.g., 38 C.F.R. § 4.115b, Diagnostic Code 7523. Moreover, the Veteran is otherwise compensated for his erectile dysfunction. In this vein, the RO found he was entitled to special monthly compensation under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a) for loss of use of a creative organ. Accordingly, on this record, the Board concludes the claim for a compensable schedular rating for the service-connected erectile dysfunction must be denied by law. 38 C.F.R. § 4.3. Fenderson Consideration It is not necessary to "stage" the Veteran's erectile dysfunction rating, as his symptoms have been consistent at a no percent level. Fenderson, 12 Vet. App. at 126. Extraschedular Consideration Finally, there is no evidence of exceptional or unusual circumstances to warrant referring the case for extraschedular consideration. 38 C.F.R. § 3.321(b)(1). The Rating Schedule reasonably describes the Veteran's disability level and symptomatology with contemplation of the relative degree of occupational and social impairment. The medical and lay evidence of record fails to show anything unique or unusual about the Veteran's erectile dysfunction disorder that would render the schedular criteria inadequate. The Veteran also has never argued for an extraschedular rating under § 3.321(b). The Veteran is already receiving special monthly compensation for his erectile dysfunction. Thus, since the assigned schedular evaluation is adequate, no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. Finally, there is no probative evidence of any other exceptional or unusual circumstances due solely to his service-connected erectile dysfunction disability, to suggest he is not adequately compensated for his disability by the regular Rating Schedule. See 38 C.F.R. § 3.321(b)(1); VAOPGCPREC 6-96. Governing Laws and Regulations for Effective Dates Generally, 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. But unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant's application. 38 U.S.C.A. § 5110(a). If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). A rating decision becomes final if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.302. Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. §§ 3104(b), 3.105(a). The applicable statutory and regulatory provisions require that VA look to all communications from a Veteran which may be interpreted as applications or claims - formal and informal - for benefits. In particular, VA is required to identify and act on informal claims for benefits. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). The Federal Circuit has emphasized that VA has a duty to fully and sympathetically develop the Veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. See Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board is required to adjudicate all issues reasonably raised by a liberal reading of the appeal, including all documents and oral testimony in the record prior to the Board's decision. See Brannon v. West, 12 Vet. App. 32 (1998); Solomon v. Brown, 6 Vet. App. 396 (1994). But in determining whether an informal claim has been made, VA is not required to read the minds of the Veteran or his representative. Cintron v. West, 13 Vet. App. 251, 259 (1999). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be pain or furnished to any individual under the laws administered by the Secretary. See 38 U.S.C.A. § 5101(a); 38 C.F.R. §§ 3.151(a). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Again, VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). But VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). In short, the essential requirements of any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). The pending claims doctrine provides that a claim remains pending in the adjudication process-even for years-if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). The Court has confirmed that raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper. Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007). "Date of receipt" generally means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r) Analysis - Earlier Effective Date - Right Leg Shortening In Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), the United States Court of Appeals for Veterans Claims (Court) held that appellants are prohibited from collaterally attacking a prior final rating decision by filing a freestanding earlier effective date claim. The Court explained that, once a rating decision which establishes an effective date becomes final, the only way that such a decision can be revised is if it contains CUE. The Court noted that any other result would vitiate the rule of finality. In other words, the Court has found that there are no freestanding claims for an earlier effective date. The Veteran must timely appeal the VA rating decision that assigned the effective date in question. If an untimely freestanding claim for an early effective date is raised, the Court has held that such an appeal should be dismissed. Id. at 299-300. Although there are numerous exceptions to the rule of finality and application of res judicata within the VA adjudication system, a new and distinct claim for an earlier effective date is not one of the recognized statutory exceptions to finality. See DiCarlo v. Nicholson, 20 Vet. App. 52, 56-57 (2006) (discussing the types of collateral attack authorized to challenge a final decision by the Secretary). The Veteran contends that the effective date assigned for the award of service connection for right leg shortening - December 18, 1998, is not correct. He says he filed his original service connection claim for right leg shortening in 1969, but it was denied by the RO in a March 1970 rating decision, because improper medical measurements of the right leg were taken at that time. The Veteran filed a claim to reopen the previously denied claim of service connection for right leg shortening on December 18, 1998. In an October 2001 rating decision, the RO granted service connection for right leg shortening. The RO assigned an effective date of December 18, 1998, for the grant of service connection, based on the date of receipt of the Veteran's claim to reopen. See 38 U.S.C.A. § 5110(i); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). In a May 2003 rating decision, the RO subsequently denied the Veteran an earlier effective date for the award of service connection for right leg shortening. The RO notified the Veteran of that decision and apprised him of his procedural and appellate rights, but he did not initiate an appeal for the effective date assigned. Therefore, that decision is final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103. That being the case, the Veteran is left with only one option in his attempt to obtain an earlier effective date for his right leg shortening: a claim alleging that the May 2003 rating decision contained CUE. See 38 C.F.R. § 3.105 (2012). To date, the issue of CUE in the May 2003 rating decision has not been raised by the Veteran and is not before the Board at this time. Even a sympathetic reading of the Veteran's various submissions does not indicate that he has raised a claim of CUE with the May 2003 rating decision. See Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) (citing Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004)) (finding that VA is obligated to sympathetically read the filings of a pro se Veteran). See also Bowen v. Shinseki, 25 Vet. App. 250 (2012) (noting that although the requirement to sympathetically read the pleadings of a pro se claimant applies to pleadings that might constitute a request for revision based on CUE, a claimant must still indicate an intent to seek revision and state what constitutes CUE with some degree of specificity). Here, in March 2008, the Veteran filed an untimely freestanding claim for an earlier effective date for the award of service connection for right leg shortening. The Court has held that under these circumstances, dismissal is required due to the lack of a proper claim. See Rudd, 20 Vet. App. at 300. The Court reasoned that to allow such claims would vitiate the rule of finality. Therefore, based on the procedural history of this case, the Board dismisses the earlier effective date appeal for the right leg shortening issue without prejudice to the Veteran. See also Sabonis v. Brown, 6 Vet. App. 426 (1994) (holding that, where the law is dispositive, the claim must be denied due to an absence of legal entitlement). Analysis - Earlier Effective Date - Special Monthly Compensation The special monthly compensation award was inferred from the award of service connection for erectile dysfunction. That is, a footnote to Diagnostic Code 7522 indicates a service-connected erectile dysfunction disability is to be reviewed for entitlement to special monthly compensation for loss of use of a creative organ under 38 C.F.R. § 3.350(a). In a October 2009 rating decision, the RO awarded secondary service connection for erectile dysfunction, as well as special monthly compensation under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a) for loss of use of a creative organ. The RO concluded that the Veteran's erectile dysfunction disorder was secondary to his service-connected lumbar spine disorder. See July 2009 VA examination report. The effective date assigned for both awards was February 11, 2009, the date of receipt of the Veteran's secondary service connection claim for erectile dysfunction. The RO found that there was no earlier claim than that on February 11, 2009 for service connection for erectile dysfunction or special monthly compensation based on loss of use of a creative organ. The Veteran has not provided any specific discussion as to why he believes he is entitled to an earlier effective date for special monthly compensation. VA law provides that entitlement to special monthly compensation is warranted 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. 38 U.S.C.A. § 1114(k) (West 2002); 38 C.F.R. § 3.350(a) (2012). VA regulations provide that loss of a creative organ will be shown by acquired absence of one or both testicles (other than undescended testicles) or ovaries or other creative organ. In addition, the VA Adjudication Procedure Manual also permits an award for special monthly compensation based on loss of use of a creative organ in a male Veteran if medical evidence of records shows the loss of erectile power secondary to a disease process, such as diabetes or multiple sclerosis. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section H, Topic 39, Block cc. Generally, 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. But unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant's application. 38 U.S.C.A. § 5110(a). With regard to the date of entitlement, in the instant case, erectile dysfunction secondary to service-connected lumbar spine spondylosis was the basis of the award for special monthly compensation based on loss of use of creative organ. See July 10, 2009 VA examination report. Although VA treatment records document a current diagnosis of erectile dysfunction as far back as 2001, the underlying basis of entitlement (secondary service connection for erectile dysfunction) was not demonstrated until the July 10, 2009 VA examination report. See 38 C.F.R. § 3.310(a); Wallin, 11 Vet. App. at 512. With regard to the date of claim, the RO considered the date of the claim of service connection for erectile dysfunction to have been February 11, 2009. However, upon review of the claims folder, in an earlier June 26, 2000 statement, the Veteran reported that his "sex life [was] not without problems." Arguably, this suggests the presence of erectile dysfunction. 38 C.F.R. §§ 3.1(p), 3.155(a); LaLonde, 12 Vet. App. at 382. However, it does not show an intent to apply for benefits. Brokowski, 23 Vet. App. at 84. In this case, the predicate service-connected disability upon which special monthly compensation was granted is erectile dysfunction. The date entitlement arose for secondary service connection for erectile dysfunction (July 10, 2009), is later than the date of receipt of the formal claim of service connection. Therefore, the claim for an effective date earlier than February 11, 2009, for the award of special monthly compensation based on loss of use of a creative organ must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102. ORDER Service connection for a left hand/wrist disorder, to include as secondary to service-connected lumbar spondylosis is denied. The claim for an initial compensable rating for the service-connected?? erectile dysfunction disorder is denied by law. The free standing claim for an effective date earlier than December 18, 1998 for the grant of service connection for right leg shortening is dismissed. The claim for an effective date earlier than February 11, 2009 for the grant of special monthly compensation on account of loss of use of a creative organ is denied. REMAND Before addressing the remaining issues of new and material evidence for a bilateral eye disorder and an increased rating for the service-connected PTSD, the Board finds that additional development of the evidence is required. First, the RO failed to characterize the eye disorder claim as a new and material evidence issue. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a). However, upon review of the claims folder, the Board sees that the Veteran filed his original claim of service connection for refractive error in November 1969. The RO denied the service connection claim in a March 1970 rating decision. The RO notified the Veteran of that decision and apprised him of his procedural and appellate rights, but he did not initiate an appeal. Therefore, that decision is final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103. The Veteran filed his petition to reopen his claim of service connection for an eye disorder, including refractive error in February 2009. The RO denied service connection in an October 2009 rating decision. The Veteran appealed this matter to the Board. In Kent v. Nicholson, 20 Vet. App. 1, 10-11 (2006), the Court held that the VCAA notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the claimant that: (1) notifies him or her of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim. In this regard, the VCAA notice letters of record failed to address new and material evidence for an eye disorder, to include all three elements of Kent. In this respect, the Board emphasizes that a petition to reopen based on new and material evidence has unique evidentiary and legal requirements. A new VCAA letter from the RO is required to correct the prior deficiencies for the eye disorder claim. The RO must then readjudicate the eye disorder claim on the basis of new and material evidence. See again 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a). Second, as to the increased rating for the service-connected PTSD, after the appeal was transferred to the Board, a review of the Virtual VA paperless claims processing system reveals an additional VA psychiatric examination dated in December 2012. This evidence is clearly pertinent to the PTSD issue on appeal. No waiver of this evidence is of record. See 38 C.F.R. § 20.1304(c) (2012). If the Board was to consider this evidence in the first instance, this potentially could be prejudicial because the Veteran, in effect, would "lose one bite of the apple," meaning the benefit of one level of judicial review. Cf., Bernard v. Brown, 4 Vet. App. 384 (1993). Thus, the RO must have the opportunity to review this record and issue a SSOC prior to readjudicating the PTSD appeal. See 38 C.F.R. §§ 19.31(b), 19.37(a), (b) (2012). Accordingly, these remaining matters are REMANDED to the RO for the following action: 1. As to whether new and material evidence to reopen the claim of service connection for a bilateral eye disorder, to include refractive error, the RO should send the Veteran a corrective VCAA notice that is compliant with Kent v. Nicholson, 20 Vet. App. 1, 10-11 (2006). Specifically, this letter should: (A) Describe what new and material evidence is under the current standard set forth under 38 C.F.R. § 3.156(a) (2012); (B) Identify what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior RO denial in March 1970. That is, in order to reopen his bilateral eye disorder claim, the Veteran must submit medical evidence of a current "disease or injury" to the eyes, as opposed to a mere congenital defect such as refractive error. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127; Browder v. Derwinski, 1 Vet. App. 204 (1991). (C) Provide general VCAA notice for the underlying service connection claim. 2. The RO then must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. After completing all indicated development, the RO should readjudicate the remaining issues of whether new and material evidence has been submit to reopen the claim of service connection for a bilateral eye disorder and an increased initial rating for the service-connected PTSD, in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish a fully responsive SSOC to the Veteran and he should be afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by the RO. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The Veteran 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). These claims 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. 2012). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs