Citation Nr: 1320932 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 10-40 537A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for status post total right hip replacement. 2. Entitlement to an initial disability rating in excess of 30 percent for status post total left hip replacement. 3. Entitlement to an initial disability rating in excess of 10 percent for prostate cancer residuals. 4. Entitlement to an effective date prior to February 5, 2010 for the grant of service connection for status post total right hip replacement, 5. Entitlement to an effective date prior to February 5, 2010 for the grant of service connection for status post total left hip replacement, 6. Entitlement to an effective date prior to February 5, 2010 for the grant of service connection for prostate cancer residuals. 7. Entitlement to an effective date prior to February 5, 2010 for the grant of service connection for erectile dysfunction. 8. Entitlement to an effective date prior to February 5, 2010 for the grant of service connection for special monthly compensation for loss of use of a creative organ. 9. Entitlement to an initial compensable disability rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The veteran served on active duty from June 1958 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). In April 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the Denver RO. A copy of the transcript of this hearing has been associated with the Veteran's physical claims folder and has been reviewed. The Board notes that by an August 2012 rating decision, service connection for bilateral hearing loss was granted and a 10 percent disability rating was assigned from February 5, 2010. At his April 2013 Travel Board hearing, the Veteran testified that he disagreed with this rating assigned for his hearing loss and that he wanted to appeal the issue to the Board. See hearing transcript page 12. Consequently the Veteran's hearing testimony concerning this, once transcribed, was tantamount to a timely notice of disagreement (NOD) with that August 2012 decision in not assigning a rating higher than 10 percent for hearing loss. See Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002) (indicating an NOD need not contain any magic words or phrases). See also Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993) (indicating that testimony offered at a hearing, once transcribed, can satisfy the requirement that a statement be "in writing"). However, the Veteran has not yet been afforded a Statement of the Case (SOC), as explained more fully below, therefore this claim is being remanded for the issuance of an appropriate statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to an increased disability rating for hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's right hip disorder is manifested by minimal residuals following a total hip replacement; but it is not characterized by moderately severe residuals of weakness, pain or limitation of motion. 2. The Veteran's left hip disorder is manifested by minimal residuals following a total hip replacement; but it is not characterized by moderately severe residuals of weakness, pain or limitation of motion. 3. The Veteran's prostate cancer is in remission and has not required surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, since January 2000; and, his prostate cancer residuals are manifested primarily by erectile dysfunction and minimal, if any, voiding dysfunction characterized by voiding intervals of 3 hours or more and twice at night. 4. The preponderance of the competent and credible evidence is against finding that the Veteran filed claims of service connection for bilateral hip replacements, residuals of prostate cancer, erectile dysfunction, or special monthly compensation for loss of a creative organ, prior to February 5, 2010, more than one year after his separation from active duty in July 1969. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 30 percent for status post total right hip replacement have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5054 (2012). 2. The criteria for an initial disability rating in excess of 30 percent for status post total left hip replacement have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, DC 5054 (2012). 3. The criteria for an initial disability rating in excess of 10 percent for prostate cancer residuals have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.115a, 4.115b, DC 7528 (2012). 4. The criteria for an effective date prior to February 5, 2010, for the grant of service connection for status post total right hip replacement have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). 5. The criteria for an effective date prior to February 5, 2010, for the grant of service connection for status post total left hip replacement have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). 6. The criteria for an effective date prior to February 5, 2010, for the grant of service connection for prostate cancer residuals have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). 7. The criteria for an effective date prior to February 5, 2010, for the grant of service connection for erectile dysfunction have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). 8. The criteria for an effective date prior to February 5, 2010, for the grant of special monthly compensation for loss of use of a creative organ have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. The Board notes that, where, as here, service connection has been granted and an initial rating has been assigned, the claim of entitlement to service connection has been more than substantiated. It has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). In any event, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. To that end the Veteran was notified via letter dated in February 2010 of VA's duty to assist him in substantiating his claims under the VCAA, and the effect of this duty upon his claims. This letter also informed him of how disability ratings and effective dates are assigned. See Dingess, 19 Vet. App. at 484. Because the letter addressed all notice elements and predated the initial adjudication by the AOJ/RO in August 2010, nothing more was required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims adjudicated herein. His in-service and pertinent post-service treatment reports are of record. The Veteran submitted personal statements, and representative argument. His Virtual VA electronic file has been reviewed. The Veteran has not indicated that any additional pertinent evidence exists, and there is no indication that any such evidence exists. The Veteran was also provided examinations in May 2010, July 2010, and March 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 (2007). The VA examinations are more than adequate. The examiners elicited from the Veteran his history of complaints and symptoms and provided pertinent clinical findings detailing the results of the examination to allow for effective evaluation of his service-connected disabilities, including a thorough discussion of the effect of his symptoms on his functioning. There is no basis to conclude that the VA medical opinions are inadequate, or that a remand for a new examination is required. Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Furthermore, the Veteran has not asserted, and the evidence does not show, that his symptoms have materially increased in severity since his March 2012 evaluation. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Discussion of the Veteran's April 2013 Travel Board hearing finally is necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issues of entitlement to increased ratings for bilateral hip replacements and prostate cancer residuals as well as entitlement to earlier effective dates for the grants of service connection for these disabilities was identified. Information was elicited from the Veteran concerning the nature and severity of his bilateral hip disabilities and prostate cancer residuals. Testimony was also elicited as to why the Veteran believes an earlier effective date was warranted. For the above reasons, the Board finds that, consistent with Bryant, VA has complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. It must be noted that neither the Veteran nor his representative have asserted that VA failed to comply with the provisions of 38 C.F.R. § 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. Accordingly, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him of the evidence needed, and in obtaining evidence pertinent to his claims. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); & Quartuccio v. Principi, supra. II. Law and Analysis for Increased Ratings The Veteran contends that his service-connected bilateral hip replacements and prostate cancer are more disabling than reflected in the current disability ratings. Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Although a review of the recorded history of a disability is necessary in order to make an accurate evaluation [38 C.F.R. §§ 4.2, 4.41], the regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). However, where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119 (1999). The United States Court of Appeals for Veterans Claims (Court) has also held that staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. A. Status Post Total Right and Left Hip Replacements In a February 2010 rating action, service connection was granted for status post total right hip replacement and status post total left hip replacement. 30 percent disability ratings were assigned under DC 5054. The Veteran has disagreed with the evaluations assigned. Under this diagnostic code, replacement of the hip with prosthesis warrants a 100 percent rating for a one-year period following implantation of the prosthesis. Thereafter a minimum rating of 30 percent is warranted. A 50 percent rating is warranted for moderately severe residuals of weakness, pain, or limitation of motion. A 70 percent rating is warranted for markedly severe residual weakness, pain, or limitation of motion following implantation of the prosthesis. A 90 percent rating is warranted following implantation with painful motion or weakness such as to require the use of crutches. DC 5054. Normal range of motion for the hip is 0 degrees of extension to 125 degrees of flexion and 0 to 45 degrees of abduction. 38 C.F.R. § 4.71 , Plate II. The Board observes that the words "moderate," "moderately severe," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Evidence relevant to the severity of the Veteran's service-connected hip disabilities includes, in addition to his assertions, private outpatient treatment notes, VA clinical records, and VA examination reports. During a July 2010 VA examination to assess the current state of the Veteran's service-connected hip disabilities, the examiner noted the Veteran's history of right hip replacement in the early 1990s followed by replacement of the left hip in 2002, both without complications. His primary complaint was stiffness of both hips. He denied pain, locking, swelling, instability, flare-ups, or incapacitating episodes. He was not on any medication but did perform daily stretching exercises. He was also able to perform, most if not all, activities of daily living, such as dressing, showering, writing, eating, and cooking without limitation. However he had difficulty with gardening due to pain with bending, and gave up playing tennis to avoid high impact exercises. He was limited to driving only 60 minutes due to bilateral hip discomfort. There was no limitation on walking although the Veteran used a "walking stick" when going more than one mile on uneven surfaces to help with stability. The Veteran was currently employed in real estate on a part-time basis (post-retirement) indicating that he had not missed any days of work within the past year due to his hips. On examination the Veteran had normal gait, but had trouble squatting due to musculature weakness. Deep tendon reflexes were 2+ and symmetric at the patellar and Achilles tendons with toes down going bilaterally. Sensation was intact to vibration, temperature, pinprick, and light touch throughout the lower extremities. Strength was 5/5 in the bilateral knee flexors/extensors, ankle dorsiflexors, ankle invertors/evertors and extensor hallucis longus. Strength was 4/5 bilateral hips flexors/extensors. There was no swelling, tenderness or instability of either hip. There was linear lateral scar measuring 8-1/2 inches in length and less than 0.5 cm on the right hip consistent with hip replacement surgery. There was postoperative linear lateral scar measuring 6-/12 inches in length and less than 0.5 cm on the left hip. The scars were described as nontender, deep-skin colored, stable, and smooth. There was no elevation or depression, skin breakdown, ulceration, underlying tissue loss, adherence, asymmetry, disfigurement, or restriction of range or motion. Range of motion testing of the right hip revealed flexion to 80 degrees, extension to 20 degrees, abduction to 45 degrees, and adduction to 30 degrees, all without pain. Internal rotation was to 40 degrees and external rotation to 50 degrees, also without pain. Range of motion testing of the left hip revealed flexion to 85 degrees, extension to 30 degrees, abduction to 40 degrees, and adduction to 35 degrees all without pain. The Veteran had painless internal rotation to 40 degrees and external rotation to 55 degrees. There was no significant change in active range of motion following repeat testing against resistance and so no additional loss of range of motion was recommended for the bilateral hip joint due to painful motion, weakness, impaired endurance, incoordination, or instability. X-rays of both hips showed total hip arthroplasty without evidence of hardware failure or loosening. The clinical impression bilateral hip degenerative joint disease, status post total hip replacement with residuals of limited range of motion. The Veteran was most recently evaluated for his hip disorders in March 2012. His medical history, complaints, and objective clinical findings remain essentially unchanged. He denied flare-ups that impact the function of the hip and thigh. On range of motion testing right hip flexion was to 75 degrees and extension was greater than 5 degrees with no objective evidence of painful motion. Left hip flexion was to 80 degrees and extension was greater than 5 degrees with no objective evidence of painful motion. Abduction was not lost beyond 10 degrees and adduction was not limited such that the Veteran could not cross legs, bilaterally. Rotation was not limited such that the Veteran could not toe-out more than 15 degrees, bilaterally. The Veteran was able to perform repetitive-use testing, with range of motion essentially remaining the same. X-rays showed degenerative arthritis and total hip arthroplasty bilaterally. There was no pain on palpation or localized tenderness of either hip. Muscle strength was normal at 5/5 and there was no evidence of malunion/nonunion of the femur, flair hip joint, or leg length discrepancy. The Veteran denied any residual signs and/or symptoms due to the hip surgery. However he noted that when sitting on the floor he could not stand up without assistance, but did not otherwise require the use of any assistive devices when walking. The examiner noted the Veteran's hip disorder would impact his ability to work in job situations requiring running, stair climbing, or sitting on the floor. The VA examiner also noted that the Veteran's bilateral hips disabilities were not productive of functional impairment that would be equally served by amputation with prosthesis. In fact, the examiner noted the Veteran was exceptionally satisfied with his bilateral hip replacements and denied any discomfort since the immediate postoperative periods. The clinical impression was right hip arthroplasty and left hip arthroplasty. A review of the remaining evidence of record shows that no treatment records pertaining to the Veteran's bilateral hip disability have been associated with the claims folder and electronic Virtual VA folder since the March 2012 VA examination. As a result there are no records that indicate a worsening in range of motion or incapacitating episodes to warrant a higher evaluation for either hip. Rather, if anything, this supports the conclusion that the Veteran's hip conditions have remained stable. Applying the regulations to the facts in the case, the Board finds that the criteria for disability ratings in excess of 30 percent are not met. Both the medical evidence and the Veteran's statements reflect that the predominant symptom appears to be stiffness and hip discomfort with certain activities, such as prolonged sitting or bending. However, for purposes of evaluating the hip disorders the subjective descriptions must be reviewed in light of the objective findings. The evidence of record does not show regular ongoing treatment for the right or left hip. In fact, the only objective clinical findings are from the 2010 and 2012 VA examination reports, which are negative for any medical evidence of residual impairment of either hip suggestive of a higher disability evaluation. There was no objective evidence of painful motion, fatigue, lack of endurance, instability, or gait abnormality. Here the Board is faced with evidence of minimal, if any, objective clinical findings associated with status post right total hip and left total hip replacements and a diagnostic code that requires moderately severe symptomatology in order to assign a higher evaluation under DC 5054. The Board has also considered DeLuca v. Brown, 8 Vet. App. 202 (1995, in reaching its conclusion in this case. However, the record does not include evidence that is both credible and persuasive documenting any additional functional limitation which would warrant higher ratings under the applicable rating criteria. Despite the Veteran's right and left hip disabilities, which primarily cause discomfort with prolonged sitting, he has remained fully ambulatory and functional. Moreover neither the Veteran nor any examiner has established that pain, weakness, or limitation of motion result in functional loss that would equate to a moderately severe level of disability. As such, the provisions of 38 C.F.R. §§ 4.40, 4.45 have been considered, but they do not provide a basis for the assignment of higher ratings. Although the Board is required to consider the effect of the Veteran's pain when making a rating determination, and has done so in this case, the Rating Schedule does not require a separate rating for pain. Rather, it provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. Spurgeon v. Brown, 10 Vet. App. 194 (1997). The presently assigned 30 percent disability ratings adequately compensate the Veteran for any painful motion and functional loss. In an effort to determine whether a higher evaluation may be assigned to the hip disabilities, the Board also considered rating criteria based on limitation of motion and hip joint disabilities found in DCs 5250 through 5255, also under 38 C.F.R. § 4.71a. However, the medical evidence shows that the Veteran's hip replacement residuals do not indicate evidence of actual ankylosis of the hip, flail hip joint or fracture of the shaft or anatomical neck of the femur as contemplated by DCs 5250, 5254 and 5255. Id. Such is simply not demonstrated. Under DCs 5251 and 5253, the maximum ratings for limitation of motion or impairment of the thigh are 10 percent and 20 percent respectively. Thus, those codes would not provide a basis for a higher rating. Id. Also, even considering the complaints as reported by the Veteran, given the clinical evidence of record, the Board finds that there is simply no indication that the Veteran has experienced pain so disabling as to result in flexion limited to 10 degrees or less, so as to warrant a 40 percent disability rating under DC 5252. Id. There is likewise no evidence that any loss of extension, flexion, or abduction could combine to support a higher (40 percent) rating. Therefore, the Board concludes that the overall level of disability under DC 5054 for limitation of motion, weakness, and pain does not approximate moderately severe and is, therefore, best represented by the 30 percent minimum rating. Thus, the criteria for the assignment of disability ratings in excess of 30 percent for status post total right hip replacement and status post total left hip replacement are not met. B. Prostate Cancer Residuals The Veteran's prostate cancer residuals are evaluated under DC 7528, which provides that active malignant neoplasms of the genitourinary system are to be rated as 100 percent disabling. Following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedures, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local reoccurrence or metastasis, the disability is rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b. First and foremost, the Veteran's surgery was conducted in January 2000, approximately 10 years prior to his filing a claim for service connection. Therefore, the criteria for assignment of a 100 percent rating for the first 6 months subsequent to surgery are not met. That said, the Board finds that there has not been any indication of local reoccurrence or metastasis of the Veteran's prostate cancer and his residuals have not been productive of renal dysfunction, and the Veteran has not claimed to have any such problems. Rather his complaints center around erectile dysfunction and a history of mild voiding dysfunction. Voiding dysfunctions are addressed under 38 C.F.R. § 4.115a, which directs that the particular condition be rated as urine leakage, urinary frequency, obstructed voiding. Urinary leakage involves ratings ranging from 20 to 60 percent and contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. A 20 percent rating contemplates leakage requiring the wearing of absorbent materials, which must be changed, less than 2 times per day. When there is leakage requiring the wearing of absorbent materials, which must be changed 2 to 4 times per day, a 40 percent disability rating is warranted. When these factors require the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day, a 60 percent evaluation is warranted. See 38 C.F.R. § 4.115a. Urinary frequency encompasses ratings ranging from 10 to 40 percent. A 10 percent rating contemplates daytime voiding interval between 2 and 3 hours, or awakening to void 2 times per night. A 20 percent rating contemplates daytime voiding interval between 1 and 2 hours, or awakening to void 3 to 4 times per night. A 40 percent rating contemplates a daytime voiding interval less than 1 hour, or awakening to void 5 or more times per night. Id. Finally, obstructed voiding includes ratings ranging from noncompensable to 30 percent. A noncompensable rating contemplates obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year. A 10 percent rating contemplates marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post-void residuals greater than 150 cubic centimeters (cc's); (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc's per second); (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every 2 to 3 months. A 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. Id. Turning to the evidence of record, private medical records show that in September 1999, the Veteran was evaluated for an elevated PSA level which had jumped to 13.1. He underwent an ultrasound and biopsy in October 1999, which showed adenocarcinoma of the prostate. The Veteran then underwent seed implant brachytherapy in January 2000. Subsequent records show he was seen for follow-up 12 days later and was doing fairly well, but was having some mild to moderate frequency, mild decreased force of stream and some dysuria. He was also still having some initial hematuria. The Veteran's mild irritative voiding symptoms were considered common after his procedure. An entry dated in July 2000 shows that six months postoperatively the Veteran had occasional dysuria and nocturia times two. He otherwise had a good force of stream and his urinary symptoms were "not that bothersome" to him. However he did note a slight decrease in his erections, but was able to have intercourse without any difficulty. The remaining records show the Veteran denied significant urinary symptoms. His only complaint was long latency between erections. He had recorded PSA levels of 0.7 and 0.6. In December 2002, three years status post the Veteran noted that his voiding was stable and no incontinence. In December 2003, 48 months status post prostate seed implant, the Veteran noted that his voiding was good with no urinary tract infections, hematuria, or incontinence. His PSA level was 0.4. During VA examination in May 2010, the Veteran reported daytime voiding of 2 to 5 times a day with voiding intervals of 3 hours or more. He awakens twice during the night to void at intervals of 3 hours or more. The Veteran denied difficulties with urination, including pain, abnormal urine stream, or leakage, and did not require the use of absorbent pads. There was also no evidence of obstructive voiding requiring catheterization, dilation, or drainage procedures and no urinary tract infections. However, the Veteran did suffer from erectile dysfunction for which he took Viagra. The clinical impression was prostate cancer currently in remission with residual erectile dysfunction. When examined by VA in March 2012, the examiner indicated that the Veteran was currently in remission and not receiving treatment. He did not have a voiding dysfunction, history of recurrent symptomatic urinary tract infections, or kidney infections. The Veteran continued to complaint of erectile dysfunction, but did not have any other residual conditions and/or complications due to prostate cancer or its treatment. The Veteran did not have any other pertinent physical findings, complications, conditions, signs or symptoms. His PSA level was <0.10. The prostate cancer residuals did not impact his ability to work. Based on the medical evidence of record, the Board determines that the Veteran's prostate cancer residuals do not warrant a rating higher than the 10 percent initially assigned. The Veteran was noted by the 2010 VA examiner to complain of a daytime voiding intervals of 3 hours or more, with episodes of nocturia, two times per night. This meets the criteria for the 10 percent rating under the criteria governing urinary frequency. The Veteran has not reported a more frequent daytime voiding interval or instances of nocturia to warrant a higher rating. In addition his voiding dysfunction is not shown to require the Veteran's wearing of absorbent materials. There is no evidence of any obstructed voiding. In fact, the most recent medical evidence shows that the Veteran did not have a voiding dysfunction. The examiner specifically stated that with the exception of erectile dysfunction, there were no residual complications due to the prostate cancer or its treatment. Consideration has been given to the Veteran's recent testimony that he voids three times per night. However, notwithstanding the fact that voiding three times a night is considered as part of the 10 percent rating as well as the 20 percent rating, the Board finds the totality of the evidence does not support the assignment of a 20 percent rating. The Veteran fortunately has very little, if any, complications stemming from his prostate cancer. A disability rating in excess of 10 percent is not warranted. While the evidence persistently demonstrates that the Veteran experiences erectile dysfunction secondary to the residuals of his prostate cancer, the Board notes that he is compensated for this problem, as he is in receipt of special monthly compensation for the loss of use of a creative organ. 38 U.S.C.A. § 1114(k) (West 2002); 38 C.F.R. § 3.350(a) (2012). The record does not show, and the Veteran does not claim, that he has penile deformity, so a separate evaluation for erectile dysfunction is not warranted. See 38 C.F.R. § 4.115b DC 7522 (2012). C. Additional (Including Extraschedular) Considerations and Conclusion The Board has also considered the provisions of 38 C.F.R. § 3.321(b)(1), which stipulate that an extraschedular rating is in order when there exists such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Therefore, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). The schedular evaluation in this case is not inadequate. The Veteran has not identified any factors which may be considered to be exceptional or unusual as to render impractical the application of the regular schedular standards, and the Board has been similarly unsuccessful. As discussed above, there are higher ratings available for the Veteran's service-connected hip replacement and prostate cancer, but the required manifestations have not been shown in this case. Moreover, there is no evidence that these disabilities have required hospitalization at any pertinent time during this appeal, and the VA examinations are void of any finding of exceptional symptomatology beyond that contemplated by the schedule of rating. Although the Board has no reason to doubt that the Veteran's symptomatology adversely impacts his employability, this is specifically contemplated by the ratings currently assigned. Accordingly, the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Further, although the Veteran has submitted evidence of a medical disability, and made claims for the highest ratings possible, he has not submitted evidence of unemployability, or claimed to be unemployable. He has not alleged that he is unemployable due to his service-connected disabilities. He reported to the July 2010 VA examiner that he remained employed as a real estate broker and had not missed any days in the past year due to his hips. The evidence does not otherwise indicate that any of his service-connected disabilities affect the Veteran's ability to work - nor has the Veteran so contended. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to the service-connected disabilities has not been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). It is not the Board's intent, in its discussion of the merits of this case, to in any way trivialize the severity of the Veteran's complaints. The Board realizes that he may genuinely believe that the severity of his hip replacement and prostate cancer residuals merit higher ratings and he is competent to describe readily visible and identifiable symptoms. However the objective evidence does not otherwise substantiate the subjective complaints, therefore his assertions do not suffice to assign higher ratings. In other words, there is no means to increase the disability rating based on the medical evidence currently of record, especially because no other codes of the rating schedule provide a basis for the application of a higher rating. Consequently, the criteria for the assignment of higher disability ratings for the service-connected bilateral hip replacements and prostate cancer residuals are not met. The Board has reviewed the claim mindful of the guidance of Fenderson, supra. The current levels of disability shown are encompassed by the current ratings assigned, and, with due consideration to the provisions of 38 C.F.R. § 4.7, higher evaluations are not warranted for any disability for any portion of the time period under consideration. There is no basis for the assignment of staged ratings. The preponderance of the evidence is against the claims, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b) (West 2002). III. Law and Analysis for Earlier Effective Date The Veteran contends that an effective date earlier than February 5, 2010, is warranted for the grants of service connection for bilateral hip replacements, prostate cancer residuals, erectile dysfunction, and special monthly compensation. Under 38 U.S.C.A. § 5110(b)(1) and 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service, or the date entitlement arose if a claim is received within one year after separation from service. Otherwise the effective date is the date of receipt of claim or date entitlement arose, whichever is later. A specific claim in the form prescribed by the Secretary is necessary for disability benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "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); Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. In this regard, the law is clear that no benefit may be paid before a claim is made. 38 U.S.C.A. § 5101 (West 2002); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998) ("[38 U.S.C.A. §] 5101 is a clause of general applicability and mandates that a claim must be filed in order for any type of benefits to . . . be paid under the laws administered by the Secretary.") (emphasis added). The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999). Likewise, the mere presence of a disability does not establish intent on the part of the Veteran to seek service connection for that condition. KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1995). The basic facts in this case are not in dispute. The Veteran was discharged from service in July 1969. He filed an original claim for service connection for bilateral hip replacements and prostate cancer on February 5, 2010. In August 2010, the RO granted service connection for status post total right hip replacement, status post total left hip replacement and 30 percent disability ratings were assigned, effective February 5, 2010, the date of receipt of the claim. Service connection was also established for prostate cancer residuals rated as 10 percent disabling, from February 5, 2010. In that decision the RO also awarded secondary service connection for erectile dysfunction under 38 C.F.R. § 4.115b, DC 7522, as well as special monthly compensation under 38 U.S.C.A. § 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 prostate cancer residuals. See July 2010 VA examination report. The special monthly compensation award was inferred from the award of service connection for erectile dysfunction. That is, a footnote to DC 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). The effective date assigned for both awards was February 5, 2010, the date of receipt of the Veteran's service connection claim for prostate cancer residuals. The Veteran does not argue, and the evidence of record does not reveal, that he filed a formal or informal claim for service connection for hip disabilities or prostate cancer prior to February 5, 2010. However he appears to contend that he is entitled to earlier effective dates, because he underwent hip replacements and prostate cancer treatment many years earlier and that had he known that he could have filed a claim for these disabilities at that time he would have done so. See April 2013 hearing transcript. The Board acknowledges that private medical records do in fact show the Veteran underwent a right hip replacement in 1992 and a left hip replacement in 2000. These records also show the Veteran was diagnosed and treated for prostate cancer in January 2000. However, not only were these private treatment records not received by VA until March 2010, but there is no evidence in these medical records that at this time he was seeking service connection for hip disabilities or for prostate cancer, and its residual erectile dysfunction. Brannon, supra. For this reason, they cannot serve as an earlier claim. 38 C.F.R. § 3.157; KL, supra. Likewise, the records are devoid of any communication from the Veteran or his representative between the time he underwent his first hip replacement in 1992 and first filing his claim with VA in February 2010, indicating an intent or desire to file a claim of entitlement to service connection. Jones, supra. In fact, the first time that the record shows any writing from the Veteran following his July 1969 separation from active duty is on February 5, 2010. Therefore, since the Veteran's claims were received more than one year after his separation from military service, the effective date of the awards may be no earlier than the date of receipt of those claims. The law is clear that no benefit may be paid before a claim is made. 38 U.S.C.A. § 5101. Moreover, while the Veteran's claim that if he had known that he could have filed a claim for these disabilities when he was first diagnosed many years ago he would have done so, the Board finds that it must apply "the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular [claimant].'" See Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992). Accordingly, and based on this evidentiary posture, the preponderance of the evidence is against an effective date earlier than February 5, 2010. There is no evidence in the claims file dated or received before February 5, 2010, that demonstrates an intent to seek benefits. See Ellington v. Nicholson, 22 Vet. App. 141, 145-46 (2007); see also Brokowsky v. Shinseki, 23 Vet. App. 79, 84 (2009); Brannon, supra. Therefore, entitlement to an effective date prior to February 5, 2010, for the grant of service connection for status post total right hip replacement, status post total left hip replacement, prostate cancer residuals, erectile dysfunction as a residual of prostate cancer, and special monthly compensation, is denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine does not apply. See 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER An initial disability rating in excess of 30 percent for status post total right hip replacement is denied. An initial disability rating in excess of 30 percent for status post total left hip replacement is denied. An initial disability rating in excess of 10 percent for prostate cancer residuals is denied. Entitlement to an effective date prior to February 5, 2010 for the grant of service connection for status post total right hip replacement is denied. Entitlement to an effective date prior to February 5, 2010 for the grant of service connection for status post total left hip replacement is denied. Entitlement to an effective date prior to February 5, 2010 for the grant of service connection for prostate cancer residuals is denied. Entitlement to an effective date prior to February 5, 2010 for the grant of service connection for erectile dysfunction is denied. Entitlement to an effective date prior to February 5, 2010 for the grant of service connection for special monthly compensation for loss of use of a creative organ is denied. REMAND As discussed in the Introduction, in an August 2012 rating decision, the RO granted entitlement to service connection for bilateral hearing loss and assigned an initial 10 percent disabling evaluation, effective February 5, 2010. In April 2013, the Veteran testified at a Travel Board hearing before the undersigned VLJ that he wished to appeal the rating assigned for the grant of service connection for hearing loss. A transcript of that hearing is of record. Because the Veteran's testimony offered during the April 2013 hearing was later reduced to writing and incorporated into the record in the form of a written transcript, the transcript of that hearing has been accepted as a Notice of Disagreement regarding the issue of entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss. See Tomlin supra. However, the RO has not issued a SOC that addresses this issue. In such cases, the appellate process has commenced and the Veteran is entitled to an SOC. See Pond v. West, 12 Vet. App. 341 (1999); Manlicon supra. This matter is, therefore, remanded for additional action-to include the issuance of an SOC. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) The AMC/RO should furnish an SOC to the Veteran and his representative addressing the issue of entitlement to an increased disability rating for bilateral hearing loss. The Veteran and his representative must be advised of the need to file a timely Substantive Appeal following the issuance of the SOC if he wishes to complete an appeal from that specific decision. This issue should be returned to the Board only if the Veteran perfects a timely appeal with respect to the denial of this claim. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs