Citation Nr: 1319863 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 09-08 703 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for a skin disorder. 3. Entitlement to service connection for sleep apnea. 4. Entitlement to an initial compensable rating for erectile dysfunction. 5. Entitlement to a rating in excess of 20 percent for diabetes mellitus. 6. Entitlement to an initial rating in excess of 10 percent for hypertension. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2008, November 2010, and January 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Board notes that the Veteran filed an application to reopen a claim for service connection for left ear hearing loss in September 2010. In a November 2010 rating decision, the RO characterized the issue as "service connection for left ear hearing loss (claimed as bilateral hearing loss)." However, the RO only adjudicated the issue as an application to reopen a claim for service connection for left ear hearing loss. Moreover, throughout the appeal period, the Veteran has contended that he has left ear hearing loss that is related to service. There has been mention of right ear hearing loss. Thus, the Board finds that right ear hearing loss is not an issue for consideration at this time. The Board also notes that a Decision Review Officer (DRO) issued a decision in December 2008 that granted an initial 10 percent rating for hypertension effective from August 9, 2007, which was the date of receipt of the Veteran's claim of service connection. In a May 2008 rating decision, the RO had previously granted service connection for hypertension. The Veteran filed a timely notice of disagreement in June 2008, a statement of the case was issued in January 2009, and a VA Form 9 Appeal was received in March 2009. However, in the March 2009 VA Form 9, the Veteran limited his appeal to service connection for posttraumatic stress disorder, which is no longer in appellate status. The United States Court of Appeals for Veterans Claims (Court) has held that the filing of a Substantive Appeal is not a jurisdictional requirement, that the filing of a timely Substantive Appeal may be waived, and that, where the RO takes actions to indicate that such filing has been waived (for instance by certifying the appeal), the Board has jurisdiction to decide the appeal. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009); Gonzalez-Morales v. Principi, 16 Vet. App. 556, 557-58 (2003). As the RO has led the Veteran to believe that his claim for a higher initial rating for hypertension was in appellate status, the Board has taken jurisdiction of the issue. In addition, in the November 2010 rating decision, the RO denied an application to reopen a claim for service connection for a skin disorder because new and material evidence was not received. A May 2008 rating decision had previously denied the Veteran's claim based on the determination that there was no evidence that the claimed condition existed. The RO had specifically determined that the Veteran's service treatment records and post-service treatment records were negative for a diagnosis or treatment of a chronic dermatological condition. The Court of Appeals for the Federal Circuit issued a decision in Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011), in which it held that 38 C.F.R. § 3.156(b) requires that VA treat new and material evidence received within one year of a rating decision as if it was filed in connection with the pending claim. The Bond decision has a direct impact on this case. In this regard, new and material evidence was received within one year of the May 2008 rating decision, as a VA progress note dated in June 2008 shows the Veteran had a large hyperpigmented macule below the right costal margin, and the impression was large lentigo maligna. Therefore, the Board finds that the May 2008 rating decision did not become final. The Board further notes that the Veteran requested a DRO hearing as well as a hearing before the Board in April 2009. However, in July 2009, he withdrew his request for both hearings. In March 2012, the Veteran again requested a hearing before the Board at the RO, and in September 2012, he asked for a videoconference hearing before the Board. In April 2013, the Veteran withdrew his request for "a travel board hearing of any kind" and asked that his case be forwarded to the Board for adjudication. Accordingly, the Board construes the April 2013 statement as a withdrawal of his request for a hearing. A review of the Virtual VA paperless claims processing system does reveal additional evidence, including VA medical records. However, all of the documents are either duplicative of the evidence in the claims file or are not pertinent to the present appeal. In March 2012, the Veteran raised the issue of entitlement to service connection for voiding impairment secondary to his service-connected erectile dysfunction. However, this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for a skin disorder and sleep apnea and to increased evaluations for hypertension and diabetes mellitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a May 2008 rating decision, the RO denied a claim for service connection for bilateral hearing loss based on the determination that the Veteran did not meet the VA standards for hearing loss as provided in 38 C.F.R. § 3.385. 2. The Veteran did not appeal the May 2008 rating decision, and there was no evidence or information received within one year of its issuance that was new and material to the claim for hearing loss. 3. Erectile dysfunction is manifested by erectile dysfunction only. There is no evidence indicating any penile deformity. CONCLUSIONS OF LAW 1. The May 2008 rating decision, which denied service connection for bilateral hearing loss, became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2012). 2. The additional evidence received since the May 2008 rating decision is not new and material, and the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for an initial compensable evaluation for erectile dysfunction have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.1-4.14, 4.115b, Diagnostic Code 7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With respect to the Veteran's claim for a higher initial evaluation for erectile dysfunction, the Veteran in this case is challenging the initial evaluation assigned following the grant of service connection. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See also VAOPGCPREC 8-2003 (December 22, 2003). Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied with respect to the issue of entitlement to a higher initial evaluation for his erectile dysfunction. With respect to the Veteran's application to reopen his claim for service connection for left ear hearing loss, the RO did provide the appellant with notice in October 2010 prior to the initial decision on the claim in November 2010. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the Veteran in the October 2010 notice letter about the information and evidence that is necessary to reopen his previously denied clams for service connection. Specifically, the October 2010 letter indicated that, in order to establish service connection, the evidence must show that he had an injury in military service or a disease that began in, or was made worse during military service, or that there was an event in service that caused injury or disease; that he has a current physical or mental disability; and, that there is a relationship between his current disability and an injury, disease, or event in military service. The October 2010 letter also explained that the Veteran was previously denied service connection for left ear hearing loss in a May 2008 rating decision. The letter stated that new and material evidence was necessary to reopen that claim. It was noted that the evidence must be in existence and be submitted to VA for the first time in order to be new and that the additional existing evidence must pertain to the reason his claim was previously denied in order to be considered material. The letter further explained that new and material evidence must raise a reasonable possibility of substantiating the claims and that the evidence cannot simply be repetitive or cumulative of the evidence considered in the previous denial. In addition, the October 2010 letter specifically informed the Veteran that the claim for service connection for left ear hearing loss was previously denied because a VA examination had found that his hearing was normal. Based on the foregoing, the October 2010 essentially notified the Veteran to look to the bases for the previous denial to determine what evidence would be new and material to reopen the claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006) (law requires VA to look at the bases for the denial in the prior decision and to respond with notice that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial). In addition, the October 2010 notice letter informed the Veteran of the division of responsibilities in obtaining the evidence. The letter also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claims. He has not identified any available, outstanding records that are relevant to the claims being decided herein. The Board does note that the Veteran's VA medical records contain references to his receipt of Social Security Administration (SSA) benefits. During a September 2010 posttraumatic stress disorder VA examination, the examiner noted that the Veteran had been doing contracts for security jobs for the previous five years, but indicated that it had ended and that he was receiving SSA disability benefits. During the same month, the Veteran told another VA examiner that he was looking for employment. In a July 2010 claim for a total evaluation based upon individual unemployability due to service-connected disabilities (TDIU), the Veteran specifically stated that he was not able to work due to his hypertension and diabetes mellitus. In a June 2010 claim for TDIU claim, he indicated that he could not work due to his PTSD and diabetes. Thus, while the SSA records may be pertinent to the claims for increased evaluation for hypertension and diabetes mellitus, the Board finds that they would not be relevant to the issues being decided herein. The Federal Circuit has noted that 38 U.S.C.A. § 5103A does not require VA to obtain all medical records or all SSA disability records. Instead, VA must obtain only those that are relevant to the Veteran's claim. The Federal Circuit also stated that VA was not required to obtain records in every case in order to rule out their relevance. Rather, they are only required as long as a reasonable possibility exists that the records are relevant to the veteran's claim. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In this case, the evidence in the file, to include the Veteran's own statements, does not show that the SSA records would be relevant to the Veteran's erectile dysfunction or left ear hearing loss. Therefore, the Board concludes the SSA records are not necessary for a decision on these particular claims. In addition, the Board notes that the Veteran was afforded VA audiological examinations in August 2011 and January 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the January 2012 VA examination was adequate, as the examiner reviewed the claims file, considered the Veteran's medical history, and performed audiometry testing. The Board does acknowledge that the August 2011 VA examiner did not review the claims file; however, she did perform a puretone threshold test and the Maryland CNC test. As will be discussed below, the crux of the case is whether the Veteran has current left ear hearing loss as defined in 38 C.F.R. § 3.385. Moreover, the Veteran informed the examiner of his current complaints and medical history. Indeed, the United States Court of Appeals for Veterans Claims (Court) has held that the relevant focus is not on whether a clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran was also afforded a VA examination in July 2012 in connection with his claim for a higher initial evaluation for erectile dysfunction. The Board finds that the examination was adequate, as it was predicated on a review of the claims file and all pertinent evidence of record and fully addresses the rating criteria that are relevant to rating the disabilities in this case. As discussed below, the Veteran refused a physical examination, but he did tell the examiner that he had normal anatomy with no penile deformity or abnormality. Thus, the examiner reported all findings to the extent possible. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected erectile dysfunction since he was last examined. 38 C.F.R. § 3.327(a). 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. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. I. Left Ear Hearing Loss Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. When a claim for service connection has been previously denied, a subsequent claim for benefits may not be considered on the merits unless new and material evidence has been presented. Regardless of what the RO has done, "the Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); 38 U.S.C.A. §§ 5108, 7104(b). The Court has held that the same statutory reopening requirements apply to prior final RO decisions. Suttmann v. Brown, 5 Vet. App. 127, 135 (1993); See also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. For applications to reopen filed after August 29, 2001, as was the application to reopen the claim in this case, new and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). If new and material evidence is received within the remainder of the appeal period after a decision, the evidence will be considered as having been received in conjunction with that decision. 38 C.F.R. § 3.156(b). VA is required to determine whether evidence received during the appeal period is new and material. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). If new and material evidence is found during this period, the decision does not become final. Id. In this case, the Veteran filed a claim of service connection for hearing loss in August 2007. The RO issued a rating decision in May 2008 denying service connection for bilateral hearing loss based on the determination that the Veteran did not meet the VA criteria for hearing loss. The evidence of record at that time included his service treatment records, private medical records, and a VA examination report, as well as his own assertions. In particular, an October 1996 private audiogram documented the puretone thresholds at 500, 1000, 2000, 3000, and 4000 Hertz as being 25, 10, 15, 10, and 10 decibels in the left ear. A private audiogram in December 2006 also revealed puretone thresholds in decibels at 500, 1000, 2000, 3000, and 4000 Hertz as being 15, 10, 10, 5, and 20 in the left ear, and a July 2003 private audiogram documented puretone thresholds at 500, 1000, 2000, 3000, and 4000 Hertz as being 15, 10, 15, 15, and 20 decibels in the left ear. In addition, during a March 2008 VA examination, the Veteran reported that he did not have hearing protection in service and indicated that he was exposed to incoming fire and bombing. The March 2008 VA audiogram documented the puretone thresholds in decibels at 500, 1000, 2000, 3000, and 4000 Hertz as being 15, 15, 15, 10, and 20 in the left ear. Speech recognition scores using the Maryland CNC Test were 96 percent in the left ear. The Veteran was notified of the May 2008 rating decision and of his appellate rights, but he did not appeal the decision. The Board notes that there was additional evidence received within one year of the May 2008 rating decision, namely VA medical records; however, those records did not pertain to left ear hearing loss. Therefore, the evidence received with one year of the issuance of the May 2008 rating decision was not new and material evidence with regard to the claim for service connection for left ear hearing loss. As such, the May 2008 rating decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 136768 (Fed. Cir. 2011). The Veteran later submitted an application to reopen his claim for service connection for left ear hearing loss in September 2010. The evidence associated with the record since the last prior final denial in May 2008 includes treatment records, VA examination reports, and the Veteran's own statements. In his September 2010 claim, the Veteran asserted that he has left ear hearing loss, and in March 2011, he contended that he has hearing loss that is related to service in Vietnam as a cook. In March 2012, he further contended that he has had hearing loss since service. None of the recent treatment records document the Veteran as having left ear hearing loss. During an August 2011 VA examination, the Veteran reported that he did not have hearing protection during service and noted that he worked as a cook and was in infantry. An audiogram documented the puretone thresholds in decibels at 500, 1000, 2000, 3000, and 4000 Hertz as being 10, 10, 5, 10, and 10 in the left ear. The speech recognition scores using the Maryland CNC Test was 96 percent in the left ear. During the January 2012 VA examination, an audiogram documented puretone thresholds in decibels at 500, 1000, 2000, 3000, and 4000 Hertz as being 15, 10, 15, 10, 15 in the left ear. The speech recognition score using the Maryland CNC Test was 96 percent in the left ear. The Veteran reiterated that that he did not have hearing protection during service and indicated that he worked as a cook and was in infantry. The majority of the evidence received since the last rating decision in May 2008 is new in that it was not of record at the time of the last rating decision. However, the Board finds the Veteran's statements to be duplicative and cumulative of the previously considered evidence, as he made the same assertions at time the claim was denied in May 2008. Moreover, the treatment records do not address hearing loss, and thus, they are not material to the claim. In addition, the August 2011 and January 2012 VA examination reports show that the Veteran does not have current left ear hearing loss. Therefore, they actually weigh against the claim, rather than raise a reasonable possibility of substantiating the claim. Significantly, the evidence missing at the time of the May 20008 rating decision continues to be absent. Specifically, there remains no evidence showing that the Veteran currently has left ear hearing loss , as defined in 38 C.F.R. § 3.385, that is related to his military service. Accordingly, the Board finds that new and material evidence has not been presented to reopen the Veteran's previously denied claim for service connection for left ear hearing loss. II. Erectile Dysfunction Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). Similarly, where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. In this case, the RO issued a January 2011 rating decision that granted service connection for erectile dysfunction and assigned a noncompensable evaluation effective from April 26, 2010, pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7522. Under that diagnostic code, a 20 percent disability evaluation is warranted when there is a deformity of the penis with loss of erectile power. Where the schedular criteria does not provide for a noncompensable evaluation, such an evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran in not entitled to a higher initial evaluation for his erectile dysfunction. The evidence of record does not show the Veteran to have a deformity of the penis. Instead, he has only complained of loss of erectile power. In this regard, the Veteran told the September 2010 VA examiner that he responded favorably to medication and was able to engage in penetration and an orgasm. He also told the July 2012 VA examiner that he had difficulty maintaining an erection and was on Viagra. He indicated that he was unable to achieve an erection sufficient for penetration and ejaculation without medication. The Veteran requested that his penis not be examined; however, he admitted to having normal anatomy with no penile deformity or abnormality. The Veteran is competent to relate his observations, and there is no reason to doubt the credibility of his statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay witnesses are competent to testify as to their observations, but this testimony must be weighed against the other evidence of record); Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). As noted above, the Veteran has described his difficulty with maintaining an erection; however, these manifestations alone without a related deformity of the penis are insufficient for the granting of a compensable evaluation under Diagnostic Code 7522. Thus, the Veteran does not meet the criteria for a compensable evaluation. Parenthetically, the Board notes that the Veteran has been already been granted special monthly compensation based on the loss of use of a creative organ. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's service-connected erectile dysfunction is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, which consists primarily of difficulty maintaining an erection without medication. As discussed above, there is a higher rating available under the diagnostic code, but the Veteran's disability is not productive of such manifestations. Moreover, the Veteran has already been granted special monthly compensation for loss of use of a creative organ, and there is no indication that he has had marked interference with employment or frequent periods of hospitalization due to his erectile dysfunction. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected erectile dysfunction under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER As new and material evidence has not been presented, the claim of service connection for left ear hearing loss is not reopened, and the appeal is denied. Entitlement to an initial compensable rating for erectile dysfunction is denied. REMAND Increased Evaluation for Hypertension and Diabetes Mellitus As previously discussed, the Veteran has asserted that he is unable to work due to his hypertension and diabetes mellitus, and he told the September 2010 VA examiner that he was in receipt of SSA disability benefits. The claims file does not contain a copy of the decision to grant benefits or the records upon which that decision was based. Under 38 U.S.C.A. § 5107(a) , VA's duty to assist specifically includes requesting information from other Federal departments or agencies. Where there has been a determination that a veteran is entitled to SSA benefits, the records concerning that decision are often needed by the VA for evaluation of pending claims and must be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In this case, it appears that these records may be relevant to the claims for an increased evaluation for hypertension and diabetes mellitus. Therefore, the RO/AMC should obtain and associate the Veteran's SSA records with the claims file. Skin Disorder In December 2010, the Veteran contended that he has a skin disorder that is related to his military service, to include exposure to Agent Orange during his service in Vietnam. His service treatment records and post-service treatment records do show some treatment for a skin disorder. Specifically, the Veteran's service treatment records indicate that he was for a skin lesion behind his left ear in April 1968. The Veteran was later treated in June 1968 for raised, itchy bumps on his legs, thigh, buttocks, buns, and forearms. The impression was questionable erythema nodosum. He was also treated for insect bites with papular urticarial during the same month. Following his military service, private medical records dated in November 1981 document the Veteran as having a nodule under his nipples. He also had a probable ganglion cyst of the left foot in November 1996 followed by an assessment of neuroma versus ganglion cyst in January 1997. In September 2002, the Veteran was treated for hyperpigmentation on the right side of his abdomen, and records dated in July 2003 show early cellulitis of the left arm and acanthosis nigricans versus fungal infections in the groin area. Moreover, as discussed above, VA medical records dated in June 2008 document a large hyperpigmented macule below the right costal margin, and the impression was large lentigo maligna. A VA dermatology outpatient note dated in October 2011 also shows that a biopsy obtained a couple of years earlier found subtle lichenoid dermatitis with some chronic fibrosis. In addition, a biopsy performed in July 2010 showed benign squamous mucosa with parakeratosis, but with no evidence of dysplasia or malignancy. On physical examination in October 2011, the Veteran had a hyperpigmented brown patch on the right flank with lichenification, papules on the right antecubital fossa, lacy white streaks on the buccal oral mucosa, a nodule on the left upper back, and a mass on the right side of the neck. The examiner noted that the hyperpigmented patch was of unknown significance, and other possible diagnoses included post-inflammatory pigment alteration, fixed drug reaction, lichenoid contact dermatitis, and lichenoid drug reaction. In an addendum, the assessment was a hyperpigmented patch on the flank in favor of lichenoid contact versus lichenoid eczema, extensive intraduct component on the left upper back, and apparently benign seborrheic keratosis. Based on the foregoing, the Board finds that a VA examination and medical opinion are necessary to determine the nature and etiology of any current skin disorder. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Sleep Apnea The Veteran has contended that his sleep apnea is related to his service-connected diabetes mellitus and hypertension. The evidence of record does document the Veteran as having sleep apnea. He was afforded a VA examination in December 2011 during which he reported that he had problems with loud snoring as early as 1973. After examining the Veteran and reviewing the claims folder, the examiner concluded that sleep apnea was less likely than not caused by an in-service injury, event, or illness. The examiner also stated that obstructive sleep apnea increases the incidence of hypertension; however, the examiner did not provide an opinion as to whether the service-connected hypertension caused or aggravated the Veteran's sleep apnea. Similarly, there is no medical opinion addressing whether the Veteran's sleep apnea is proximately due to or aggravated by his service-connected diabetes mellitus. When VA undertakes to obtain a VA opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that an additional medical opinion is necessary in this case. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain a copy of the decision to grant SSA benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 2. The Veteran should be afforded a VA examination to determine the nature and etiology of any skin disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran's service treatment records indicate that he was for a skin lesion behind his left ear in April 1968. He was later treated in June 1968 for raised, itchy bumps on his legs, thigh, buttocks, buns, and forearms. The impression was questionable erythema nodosum. He was also treated for insect bites with papular urticarial during the same month. It should also be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, such as observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current diagnoses of any skin disorder that have been present during the pendency of the appeal. For each diagnosis identified, the examiner should opine as to whether it is at least as likely as not that the disorder is related to the Veteran's military service, including his symptomatology and herbicide exposure therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The RO/AMC should refer the Veteran's claims folder to the December 2011 VA examiner or, if he is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's current sleep apnea. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. The examiner should then state an opinion as to whether it is at least as likely as not that the Veteran's sleep apnea is proximately due to or aggravated by his service-connected hypertension and diabetes mellitus. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs