Citation Nr: 1324577	
Decision Date: 08/02/13    Archive Date: 08/13/13

DOCKET NO.  07-34 547A	)	DATE
	)
	)

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


THE ISSUES

1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a groin injury.  

2. Entitlement to service connection for insomnia, to include as secondary to Agent Orange exposure, and/or service-connected disabilities. 

3. Entitlement to service connection for decreased libido (diagnosed as erectile dysfunction), to include as secondary Agent Orange exposure, and/or service-connected disabilities.  

4. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD).  

5. Entitlement to a higher evaluation for urethral stricture disease with periurethral abscess and post-operative status suprapubic cystostomy and internal urethrotomy, to include prostatitis, currently evaluated as 20 percent disabling from December 23, 2005, to May 20, 2007; 40 percent disabling from May 21, 2007, to January 31, 2012; and 60 percent from February 1, 2012.  

6. Entitlement to an evaluation in excess of 20 percent for residuals of a gunshot wound (GSW) to the right hand with peripheral neuropathy. 

7. Entitlement to an evaluation in excess of 30 percent for residuals of a gunshot wound to the right lower abdomen, with injury to muscle group XIX. 

8. Entitlement to an evaluation in excess of 30 percent for residuals of a gunshot wound to the abdomen with intestinal perforation, post-operative closed ileocolostomy. 

9. Entitlement to an initial evaluation in excess of 30 percent for scars of the right flank, right lower abdomen, right mid-abdomen, right posterior hip, right third finger, and right mid-palm. 

10. Entitlement to an effective date prior to May 21, 2007, for the grant of a 40 percent evaluation for the service-connected urethral stricture disease with prostatitis. 

11. Whether the Veteran submitted a timely substantive appeal with respect to the issue of entitlement to an effective date earlier than February 1, 2007, for the additional allowance of a dependent spouse. 

12. Entitlement to a total rating based on individual unemployability (TDIU) due to service connected disorders. 


REPRESENTATION

Appellant represented by:	The American Legion




WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

H. Hoeft, Counsel


INTRODUCTION

The Veteran served on active duty from October 1965 to November 1970.  He is the recipient of the Purple Heart medal.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. 

The Veteran testified before the undersigned Veterans Law Judge in January 2013.  A transcript of that proceeding has been associated with the claims file. 

Although the issue of whether the Veteran submitted a timely substantive appeal with respect to the issue of entitlement to an effective date earlier than February 1, 2007, for the additional allowance of a dependent spouse, was not certified for appeal, the Veteran filed a timely VA Form 9 in July 2012 and presented evidence at his January 2013 hearing on that matter.  Thus, that issue is before the Board. 

The issues of: (1) entitlement to service connection for insomnia, to include as secondary to Agent Orange exposure, pain and nocturia symptoms associated with his service-connected neuropathy and urethral stricture with prostatitis, and PTSD; (2) entitlement to service connection for a groin injury; (3) entitlement to an evaluation in excess of 20 percent for residuals of a gunshot wound to the right hand with peripheral neuropathy; (4) entitlement to an evaluation in excess of 30 percent for residuals of a gunshot wound to the right lower abdomen, with injury to muscle group XIX; and (5) entitlement to an initial evaluation in excess of 30 percent for scars of the right flank, right lower abdomen, right mid-abdomen, right posterior hip, right third finger, and right mid-palm, 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 January 1981, the RO denied the claim for service connection for a groin injury and notified the Veteran of the decision and of his procedural and appellate rights; the Veteran did not appeal.

2. Since January 1981, the RO has received evidence that is not cumulative or redundant of evidence already of record and which raises a reasonable possibility of substantiating the claims for residuals of a groin injury.

3. The Veteran's erectile dysfunction is etiologically related to his service-connected residuals of a gunshot wound to the abdomen, status post surgical repair.  

4. Throughout the entire period on appeal, the Veteran's PTSD has been no more productive than moderate occupation and social impairment with intermittent periods of inability to perform occupational tasks due to symptoms such as chronic sleep impairment and mild memory loss.  

5. Throughout the entire period on appeal, the Veteran's genitourinary disorder has been manifested by prostatitis; urethral stricture; obstructed voiding; urinary frequency including nighttime voiding 3 to 8 times per night; voiding dysfunction, including intermittent leakage requiring absorbent materials, which must be changed up to 4 times per day; periurethral abscesses, which require draining; and urinary tract infections; but there is no evidence of renal dysfunction, malignant neoplasms; or bladder or urethral fistulas. 

6. The Veteran's gunshot wound residuals to the abdomen with intestinal perforation, status post closed ileocolostomy is largely asymptomatic, with the exception of painful scars which are separately rated. 

7. On July 9, 2008, the RO mailed notification to the Veteran of a decision of the same date that awarded an additional allowance for a dependent (spouse), effective February 1, 2007. 

8. A notice of disagreement challenging the February 1, 2007, effective date assigned by the RO's July 2008 decision was received on July 22, 2008. 

9. On June 11, 2009, the RO mailed a statement of the case to the Veteran at his address of record at the time. 

10. A substantive appeal regarding the July 2008 decision was not received from the Veteran within 60 days of the date of the RO's mailing of the statement of the case or within the remainder of the one-year period from the date of the RO's July 2008 notification. 


CONCLUSIONS OF LAW

1. The January 1981 rating decision that denied the Veteran's claim of entitlement to service connection for a groin injury is final and binding based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103 (2012).

2. New and material evidence having been received; the claim for service connection for a groin injury is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

3. Erectile dysfunction is proximately due, the result of, or aggravated by service-connected disabilities, specifically gunshot wound residuals. 38 U.S.C.A. § 1110, (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012).

4. The criteria for an initial evaluation in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). 

5. The criteria for an evaluation of 60 percent, but no higher, for urethral stricture disease, from December 23, 2005, to January 31, 2012, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.115a (2012).

6. The criteria for an evaluation in excess of 60 percent for urethral stricture disease, beginning February 1, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.115a (2012).

7. The criteria for an evaluation in excess of 30 percent for residuals of a gunshot wound to the abdomen with intestinal perforation, post-operative closed ileocolostomy, have not been met. 38 U.S.C.A. § 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.114, Diagnostic Code 7301 (2012). 

8. The Veteran did not timely perfect an appeal as to the issue of entitlement to an effective date earlier than February 1, 2007, for the additional allowance for a dependent, and the Board has no jurisdiction to address this matter. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.109(b), 19.30, 20.101, 20.200, 20.202, 20.300, 20.302, 20.303 20.305 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  For service-connection claims, this notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The VCAA duty to notify was satisfied by way of letters sent to the Veteran in August 2007, January 2011, and February 2011.  Those letters informed him of what evidence was required to substantiate the claims, and of his and VA's respective duties for obtaining evidence.  

With respect to the claim for a higher rating for PTSD, that claim stemmed from the initial grant of service connection.  The VA General Counsel  has held that 38 U.S.C.A. § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate newly raised or "downstream" issues, such as the claims for increased compensation following the initial grant of service connection for a disability, in response to notice of its decision on a claim for which VA has already given the appropriate section 5103(a) notice. See VAOPGCPREC 8-2003 (Dec. 22, 2003). 

VA also has a duty to assist a claimant in the development of a claim.  This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). 

The Veteran's service treatment records have been associated with the claims file since 1965.  The RO has obtained his VA treatment records and associated them with the claims file.  Either with VA's assistance or submitted directly by the Veteran, all relevant identified and obtainable private treatment records have been associated with the claims file.  The Veteran was afforded a hearing in January 2013, at which time he provided testimony in support of his claims.  He has been afforded multiple VA examinations with respect to his claims for increased ratings. To that end, 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 examinations conducted in conjunction with his PTSD, urethral stricture, and intestinal claims were adequate.  In all instances, the VA examiners considered all of the pertinent evidence of record, to include his service treatment records, and personal statements and history. 38 C.F.R. § 3.159(c) (4). 

Lastly, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. 3.103(c)(2)  (2010) requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the VCAA. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, 23 Vet. App. at 488.  The Board finds that to the extent the undersigned Veterans Law Judge failed to fulfill these two duties at the January 2013 hearing, the Veteran was not prejudiced thereby, because by his submitted statements and by arguments at the hearing, the Veteran and his authorize representative amply demonstrated understanding of the issues involved in the claims for service connection, increased ratings, and earlier effective date, and understanding of what evidence would support the claims.  As discussed infra, the Veteran and his representative made arguments as to their satisfaction of requirements for those claims, and also addressed such evidence as would be needed to support the claim, thus demonstrating both knowledge of the issues and of the evidence required to support the claim. 

In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication.  VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claim, and, as warranted by law.  Significantly, the Veteran has not identified, and the record does not otherwise indicate, that any additional evidence exists that has not been obtained and would be necessary for a fair adjudication of the claim.  Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

I. New and Material Evidence - Groin Injury

A decision of the RO becomes final and binding and not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103.  If a claim has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. §§ 5108, 7105(c); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 

New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).

Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).

In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary to consider the patently incredible to be credible"). 

The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4) , which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). 

In Shade, the Court stated that, when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id., at 118.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  In other words, the Court indicated that the post-VCAA version of 38 C.F.R. § 3.156(a) establishes a low threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim.  Rather, if there is newly submitted evidence of current disability that in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened.  This then triggers VA's duty to assist in providing the claimant with a VA examination.

By way of history, in December 1980, the Veteran submitted a claim for service connection for "an injury to the groin when I was over in the Canal Zone [Fort Kobbe] in 1967-1968."  This claim was first considered and denied by the RO in a January 1981 decision, which found that while the Veteran was treated for acute right epididymitis in 1968 at Fort Kobbe, STRs failed to show any evidence of "frank injury" to this area (i.e., the groin).  

The Veteran was notified of his appellate rights in February 1981, but did not file a notice of disagreement with respect to the RO's determination as to this issue (see 38 C.F.R. § 20.201), and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156 (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).  Thus, the January 1980 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103, 20.1105 (2012).

In a March 2010 statement, the Veteran reported that he was experiencing a lot pain in his "right hip area, and my groin area, and pelvis."  The RO interpreted this statement as a claim to reopen the previously denied claim for service connection for a groin injury, as well as a claim for an increased rating for service-connected for residuals of a gunshot wound/muscle injury to the abdomen (the latter of which is also currently on appeal).  

In a May 2011 rating decision, the RO declined to reopen the Veteran's groin claim based on the lack of submission of new and material evidence.  The Veteran expressly disagreed with the May 2011 rating decision and the current appeal ensued. 

The evidence of record at the time of the prior final January 1981 rating decision that denied service connection for a groin injury, included the Veteran's service treatment records from his period of active service from October 1965 to September 1968; a March 1974 VA examination; a December 1980 statement from the Veteran regarding his in-service injury to the groin in 1968 while stationed in the Canal Zone (Fort Kobbe); and VA treatment/hospitalization records from August 1980 showing treatment for urethral stricture disease.  

With respect to the Veteran's STRs, again, they do not reflect any direct injuries to the groin; the Veteran was treated in March 1968 for pain and swelling of the right testis, as well as tender bilateral inguinal lymph nodes.  The final diagnosis was right epididymorchitis.  STRs also show that the Veteran sustained gunshot wound injuries to the right flank and, specifically, the right iliac crest in June 1966; he underwent a post-ilio-transverse colostomy later that same month.  The STRs are unremarkable for specific complaints of, or injuries to the "groin," but do show ongoing complaints of abdominal and right lower quadrant pain, in addition to epididymorchitis in 1968.  Again, based on the foregoing evidence, the RO denied the Veteran's claim for a groin injury in January 1981.  

Evidence received since that January 1981 denial includes VA treatment records, statements from the Veteran in support of his claim, and the Veteran's January 2013 hearing testimony.  In pertinent part, at his hearing before the undersigned, the Veteran testified that the current pain in his groin area was directly related to the gunshot wound sustained in Vietnam in 1966, the resulting surgery/scarring, and the colostomy procedure.  He stated that this residual groin pain/scarring was separate and distinct from the already service-connected gunshot wound residuals related to right flank/abdomen/hip scarring and muscle injury.  

The Board finds that this evidence is both new and material, as it was not of record at the time of the prior final denial, and, when considered with the evidence of record, it at least triggers VA's duty to assist by providing a medical opinion. Shade, supra.  Thus, this evidence relates to an unestablished fact necessary to substantiate this claim and raises a reasonable possibility of substantiating this claim, so this claim is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  The claim for entitlement to service connection for residuals of a groin injury (or residual scarring) is remanded for further development herein. 

II. Service Connection - Erectile Dysfunction

The Veteran contends that his erectile dysfunction, claimed as sexual issues or decreased libido, is due to his service-connected gunshot wound residuals to the abdomen.  The Board notes that the Veteran is currently service-connected for multiple residuals gunshot wound injuries, including urethral stricture disease with periurethral abscess and post-operative status, suprapubic cystostomy, and internal urethrotomy, to include prostatitis; residuals of a gunshot wound to the abdomen with intestinal perforation, post-operative closed ileocolostomy; gunshot wound scars of the right flank/abdomen, right hip; residuals of a gunshot wound to the lower abdomen with muscle injury; and residuals of a gunshot wound, to include tendonitis of the right hip and pelvic area.  The Veteran alternatively claims that the erectile dysfunction is related to Agent Orange exposure.  As service connection is being granted herein on a secondary basis (and as no prejudice results), the Board will limit its discussion below to this theory of entitlement. 

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden /Caluza element is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). 

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).  In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a).

Secondary service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection includes the concept of aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995).  In October 2006, 38 C.F.R. § 3.310(a) was amended to conform with Allen, additionally, other substantive changes were made. 

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Again, the Veteran primarily contends that his erectile dysfunction is due to his multiple, abdominal gunshot wound residuals. See also Board Hearing Testimony. 

As an initial matter, VA treatment records and examination reports confirm a current erectile dysfunction diagnosis.  As outlined above, the Veteran is also service-connected for numerous residual disabilities relating to gunshot wounds sustained to the abdomen during active duty service.  Thus, the remaining question is whether such residuals are the proximate cause of the Veteran's erectile dysfunction.  

To answer this question, the Veteran underwent a VA genitourinary examination in February 2012.  At that time, the VA examiner stated that erectile dysfunction was more likely than not related to the gunshot wound residuals, status post multiple surgical repairs.  There are no medical opinions of record to the contrary.  

In light of the foregoing, and especially considering the positive VA opinion and the lack of medical evidence to the contrary, the Board finds that service connection for erectile dysfunction on a secondary basis is warranted in this case. See 38 C.F.R. § 3.310.  As such, service connection for erectile dysfunction as secondary to service-connected residuals of a gunshot wound to the abdomen is granted. See Gilbert, supra.  

III. Increased Ratings

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). 

A disability may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1.  However, where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations can be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 126 (2001). 

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. 

a. PTSD

The Veteran contends that his PTSD is more severe than the currently assigned 30 percent evaluation contemplates.  At his hearing before the undersigned, the Veteran specifically endorsed chronic sleep impairment. 

Factual Background 

The record indicates that the Veteran served on active duty from October 1967 to November 1970, and that he served in Vietnam from April 1966 to January 1967. He was awarded the Parachutists Badge, Vietnam Service Medal, Purple Heart, and Good Conduct Medal. 

The Veteran's initial claim for service connection for PTSD was received in March 2010.  The RO granted service connection in a May 2011 rating decision, and assigned a 30 percent evaluation, effective March 10, 2010.  The Veteran submitted a Notice of Disagreement as to the rating assigned therein, and the current appeal ensued.  

With respect to the medical evidence of record, a July 2009 VA Mental Health note reflected that the Veteran was having problems sleeping; he reported having some PTSD symptoms after returning from Vietnam, but presently denied any such symptoms.  He stated that he had anxiousness and general worry, but minimized this to be exclusive to financial concerns/obligations.  He stated that his current insomnia was specifically due to multiple mid-night awakenings related to arm pain and nocturia.  He denied nightmares or an anxiety component to this.  He also denied mood difficulties and stated that he preferred to not be been seen in Mental Health.  The Veteran was apparently taking amitriptylene, but discontinued it secondary to adverse side effects.  Objectively, he was oriented to person, place, and time; his appearance was well-groomed; his behavior was cooperative; his mood was "fine"; his affect was euthymic; there were no audio or visual hallucinations; speech was normal; there were no suicidal or homicidal ideations; and insight and judgment were fair. 

The Veteran underwent a VA psychological examination in October 2010.  He was described as appropriately dressed.  He reported that he had been married three times and had two children and multiple grandchildren.  The Veteran described being injured in Vietnam; he also described doing a lot of carpentry work, painter work, plumbing, roofing, and construction work after service.  He stopped working in 1993.  He stated that tried to stay active and that he works around the house and fixes things.  He described a long list of medications he takes for various physical conditions, such as medications for eye, prostate, sleep, and sexual problems.  He also endorsed night sweats, wild dreams, and problems sleeping every night.  The Veteran described his relationships with family members and friends as "good."  Social functioning included going out to eat with his wife once in a while and going to church.  Assaultiveness and suicide attempts were denied.  Impairment of thought process and communication was denied.  Delusions and hallucinations were also rejected.  Eye contact and interaction in the session were forthright and strong.  Personal hygiene was positive.  The Veteran was oriented to person, place, time, and situation.  The Veteran did not complain of memory loss or impairment.  Obsessive and ritualistic behaviors were denied.  Speech was normal and logical.  The Veteran stated that he was not depressed, "just maybe over my health problems."  The examiner diagnosed PTSD, noting that the symptoms appeared to be moderate but were chronic and persistent.  A GAF score of 55 was assigned. 

The Veteran underwent another VA psychological examination in February 2012.  He stated that he spends most of his time with his wife, children, and grandchildren.  He reported that his wife filed a restraining order against him 2 years ago (due to verbal abuse) and that they had separated for a year; they have moved back in together since that time and he described their relationship as "closer."  He stated that he enjoys playing with his grandchildren, being with friends, and watching movies with his wife.  He endorsed continuing problems with irritability and anger related to PTSD.  The Veteran stated that he had been unemployed since 1995.  The Veteran reported that he had not received any mental health treatment since his last VA examination in 2010.  He does not take medications for PTSD. He denied legal or behavioral problems, as well as substance abuse problems since the last VA examination.  Current symptoms included the following: avoidance; restricted range of affect; difficulty falling or staying asleep; irritability or outbursts of anger; difficulty concentrating; hypervigilance; suspiciousness; chronic sleep impairment; and mild memory loss (such as forgetting names, directions, or recent events).  The examiner noted that the PTSD symptoms described above caused clinically significant distress or impairment in social, occupation, or other important areas of functioning.  The level of social and occupational impairment was described as occasional decrease in work efficiency and interment periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation.  A diagnosis of PTSD was provided, along with a GAF score of 65.  The VA examiner expressly noted that the "Veteran does not show any worsening of PTSD symptoms since his last exam."

Legal Analysis 

The Veteran's PTSD has been assigned a 30 percent rating under Diagnostic Code 9411. 38 C.F.R. § 4.130 (2012).  According to this Code, a 30 percent evaluation is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 

A 50 percent evaluation is warranted when there is occupational and social impairment, with reduced reliability and productivity, due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more frequently than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 

A 70 evaluation is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. 

A 100 percent rating requires total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. 

The Global Assessment of Functioning is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994).  A GAF score of 41 to 50 is defined as denoting serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 61 to 70 is defined as some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. See Carpenter v. Brown , 8 Vet. App. 240, 242-244 (1995).

After a review of the evidence of record the Board finds that an evaluation in excess of 30 percent for PTSD is not warranted.  Significantly, the Veteran's PTSD does not result in disability that equates to functional loss greater than that which results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  

While the Veteran indicated that he has occasional angry outbursts, insomnia, and frequent bad dreams and nightmares, the record also indicates that he regularly engages in hobbies and enjoys being with his grandchildren and friends, and watching movies with his wife.  He has described his relationships with his wife and children as "good." In fact, during the February 2012 VA examination, the Veteran stated that he currently had a much closer relationship with his wife than ever before.  

Furthermore, while the Veteran's reported being irritable at times, he was repeatedly found to be cooperative with normal and relevant speech and good eye contact.  No impairment of thought process was reported.  He was noted to be fully oriented at all times.  He denied being depressed.  The Veteran takes no medications for his PTSD, nor does he receive any kind of ongoing mental health care for his PTSD.  

With respect to employment, the Veteran stated that he has not worked since 1993/1994 as a result of physical impairments/disabilities. See VA Examinations and Hearing Transcript, generally.  There is no indication, either from the Veteran himself, or elsewhere in the record, that his PTSD symptoms would result in occupational impairment greater than the impairment already contemplated by the assigned 30 percent evaluation.  Indeed, as shown above, the record reflects that the Veteran is more than capable of establishing and maintaining effective social relationships, and there is no indication that he could not do the same in a work-like setting.  In sum, such findings tend to show that the Veteran's service-connected PTSD is properly evaluated as 30 percent disabling. 38 C.F.R. § 4.130, DC 9411. 

In reaching the above conclusion, the Board also finds that the objective evidence of record does not reflect a level of impairment that warrants 50 percent evaluation. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012).  The Veteran is not shown to exhibit occupational and social impairment with reduced reliability and productivity due to his symptomatology.  His mental status and VA examinations do not reflect other symptoms typical of a 50 percent evaluation such as circumstantial, circumlocutory, or stereotyped, speech; difficulty in understanding complex commands; impaired judgment; and impaired abstract thinking.  Rather, the competent evidence of record establishes that the Veteran's thoughts have been coherent and rational; his judgment has been good/fair; and he has always been oriented.  

Lastly, while the Veteran has been noted as having mild memory loss and chronic sleep impairment, the Board points out that such symptoms are expressly contemplated by the currently-assigned 30 percent evaluation.  

As such, the overall disability picture presented most closely approximates the criteria for the currently assigned 30 percent evaluation for his PTSD.  Indeed, as the discussion provided herein illustrates, the symptomatology associated with the Veteran's PTSD has remained fairly consistent.  He continues to function generally satisfactorily in all areas of his life. 

In reaching this decision, the Board has also considered the various GAF scores that the Veteran has received during the appeal period.  The Board acknowledges the October 2010 VA examination report reflects a GAF score of 55, which is defined as denoting moderate symptoms.  The subsequent VA psychiatric evaluation completed in February 2012 provides a GAF score of 65, which is reflective of only mild symptoms. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994).  While important, the GAF scores assigned in a case are not dispositive of the evaluation and must be considered in light of the actual symptoms of the Veteran's disorder. See 38 C.F.R. § 4.126(a).  In this case, however, the GAF scores are commensurate with the Veteran's PTSD symptoms, which have been described as "moderate" by VA examiners. 

The Board has considered the possibility of staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999) & Hart v. Mansfield, 21 Vet. App. 505 (2007).  The Board concludes, however, that the criteria for an initial rating in excess of 30 percent have not been met at any time during the appeal period.  Indeed, the February 2012 VA examiner expressly noted that there had been no worsening of PTSD symptoms since the 2010 VA examination.  Accordingly, staged ratings are inapplicable. Id.  

The Board has also carefully reviewed and considered the Veteran's statements regarding the severity of his PTSD condition.  The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects.  Medical evidence is generally required to address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes.  However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms.  The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms.

Thus, and as previously discussed herein, the Board finds that the psychiatric symptomatology asserted, and exhibited by the Veteran warrants a disability rating no higher than the currently-assigned evaluation of 30 percent for his service-connected PTSD.  Accordingly, the Board concludes that the preponderance of the evidence is against the claim for an initial rating in excess of 30 percent for PTSD. 

Extraschedular Consideration

The Board also finds that the Veteran's PTSD does not warrant referral for extra-schedular consideration at any point during the appeal period.  In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1).  There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008).  First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id.  If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1).  If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id.  

In the present case, the Board finds that the Veteran's disability picture due to his service-connected PTSD is adequately contemplated by the rating schedule, especially since the rating criteria (DC 9411) specifically take into account social and occupational functioning in assessing the severity of the PTSD, and provides for a greater evaluation for more severe impairment.  The record reflects that the Veteran previously worked as full time, and then stopped working due to physical disabilities.  His PTSD has been described by medical professionals as "moderate" in nature and it is predominately manifested by symptoms such as chronic sleep impairment (nightmares) and mild memory loss; the 30 percent rating criteria reasonably describe this disability level and symptomatology.  Thus, the Board concludes that the first prong of the Thun analysis has not been satisfied in this case, the criteria for referral for the assignment of an extraschedular disability rating are not met, and the Board declines to remand this matter for referral for extraschedular consideration. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, supra. 

b. Urethral Stricture with Prostatitis

The Veteran contends that he is entitled to a higher evaluation for his service-connected urethral strictures.  At his hearing before the undersigned, he specially endorsed frequent urinary infections, burning/stinging while urinating, swollen prostate, weak urine stream, and nocturia (up to 6 times per night).  

Factual Background

By way of history, while serving in Vietnam in 1966, the Veteran sustained a gunshot wound to the right lower abdomen/flank and iliac crest; he subsequently developed a retroperitoneal perforation of the right colon, with fecal fistula, and underwent a post ilio-transverse colostomy procedure later that month.  In August 1980, the Veteran was treated for urethral stricture disease with periurethral abscess, status post suprapubic cystostomy - this condition was noted as stemming from the initial gunshot wound injury to the abdomen, and, in an April 1981 rating decision, the RO granted service connection for such disability (a 0 percent evaluation was assigned).  

In December 2005, the Veteran submitted a claim for service connection for prostatitis, to include as secondary to Agent Orange exposure.  The RO denied the prostatitis claim in April 2006; the Veteran disagreed with this determination and filed a substantive appeal in December 2006.  Also in December 2006, the Veteran underwent a VA prostate examination.  The examiner diagnosed nocturia (weak stream), multiple peroneal and periurethral abscesses "more likely than not related to his gunshot wound and subsequent repair," and recurrent prostatitis also "more likely than not...related to the previous gunshot wound." 

Based on the December 2006 VA examination, in December 2006, the RO increased the Veteran's rating to 20 percent, effective May 21, 2007, for urethral stricture with periurethral abscess and post-operative status, suprapubic cystostomy and internal urethrotomy, to include prostatitis. 

The Veteran disagreed with the 20 percent evaluation assigned by the December 2006 rating decision; the RO then issued a Statement of the Case; and the Veteran submitted a VA Form 9 in November 2007.  

In a November 2009 rating decision, the RO increased the Veteran's rating for urethral stricture to 40 percent, effective May 21, 2007.  In a January 2010 rating decision, the RO continued the 40 percent rating.  In a February 2012 rating decision, the RO increased the Veteran's rating for urethral stricture to 60 percent disabling, effective February 1, 2012.  

Based on the procedural history outlined above, the Board must consider the following: (1) whether the Veteran is entitled to an evaluation in excess of 20 percent for urethral stricture prior to May 21, 2007; (2) an evaluation in excess of 40 percent prior to February 1, 2012; and (3) an evaluation in excess of 60 percent thereafter. 

The Veteran's urethral stricture disorder is currently rated under 38 C.F.R. § 4.115b, Diagnostic Codes 7599-7519 (2012) (urethra, fistula of). See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen).  Notably, the Veteran has not been shown to have urethral fistulas, only urethral abscesses.  In this case, however, there is no Diagnostic Code which specifically deals with the diagnosed urethral stricture disease, with periurethral abscess, and post-operative status post suprapubic cystostomy and internal urethrotomy to include prostatitis.  As discussed in detail below, the Veteran's genitourinary condition (GU) is manifested by urethral stricture and prostate hypertrophy, among other genitourinary symptoms.  Diagnostic Codes 7518 (urethra, stricture of) and 7527 (prostate gland injuries, infections, hypertrophy, postoperative residuals) specifically address these conditions and will be considered by the Board in evaluation of the Veteran's urethral condition below.  

Regardless, all of the applicable genitourinary Codes in this case direct the rater to rate the claimed condition as renal dysfunction, voiding dysfunction, and/or urinary tract infection. 

Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115a.  Only the predominant area of dysfunction is considered for rating purposes. Id.  

For urine leakage, a 20 percent rating is assigned when the wearing of absorbent materials must be changed less than 2 times per day; a 40 percent rating is assigned when the wearing of absorbent materials must be changed two to four times per day; and a 60 percent rating is for assignment with the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. 38 C.F.R. § 4.115a, Diagnostic Codes 7512, 7517, 7542.

For urinary frequency, a 20 percent rating is assigned with daytime voiding interval between one and two hours, or; awakening to void three to four times per night; a 40 percent evaluation is assigned with daytime voiding interval less than one hour, or; awakening to void five or more times per night. 38 C.F.R. § 4.115a, Diagnostic Codes 7512, 7517, 7542. 

For obstructed voiding, urinary symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year, warrants a noncompensable rating.  A 10 percent rating is assigned for obstructed voiding with 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 cc.; (2) Uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); (3) Recurrent urinary tract infections secondary to obstruction; (4) Stricture disease requiring periodic dilatation every 2 to 3 months.  Obstructive voiding with urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. 

Urinary tract infections with poor renal function are to be rated as renal dysfunction. 38 C.F.R. § 4.115a. 

Urinary tract infections with long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management warrant a 10 percent rating. 

Recurrent symptomatic urinary infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management warrants a 30 percent rating.

VA treatment records dated from June 2004 to September 2005 reflect complaints of, and treatment for urinary tract infections, prostate enlargement, nocturia (urinating up to 3 times per night), weak stream, and burning with urination. 

A September 2006 VA treatment note reflects complaints of an infection in the urogenital area ("he squeezed pus"); the diagnostic assessment was three, small afebril abscesses in the perineum area, without visible opening.  

The Veteran underwent a VA examination in December 2006 to evaluate his prostate condition.  He reported "multiple bouts of prostatitis since the 1970's, anywhere from around one every 2 to 3 years."  He also reported multiple peroneal abscesses, with subsequent drainage, but no operation required to do so.  He stated that he gets occasional smaller abscesses that he drains himself.  He reported having nocturia up to four times per night with decreased urination stream.  Physical examination of the Veteran revealed multiple scars with distorted anatomy.  The diagnostic assessment was nocturia, with decreased force of stream, likely related to benign prostatic hypertrophy; multiple periurethral abscesses; and recurrent prostatitis.  

A May 2007 VA treatment note reflected that the Veteran was getting up to use the bathroom 8 times per night to urinate. 

A June 2007 VA treatment note reflected prostate complaints (i.e., increased need to urinate).  

Other VA treatment records dated from July 2007 to June 2008, reflected night-time urinary frequency of 6 to 7 times per night.  

In an August 2007 statement, the Veteran reported that he was having serious problems with nocturia and was urinating up to 8 times per night.  He also stated that his prostate and urine were always burning, and that he was always tire and weak.  He stated that he was unable to make it to the restroom on occasion and would wet himself as a result.  He noted that he was taking three medications, prescribed by VA, for his prostate/urinary symptoms.  

A November 2007 VA urology treatment note showed that the Veteran was "terribly symptomatic" despite medical treatment/intervention.  The Veteran reported frequent urination with strong odor, cysts on the scrotum, nocturia, and urgency.  

A December 2007 VA echogram report of the abdomen noted multiple benign left renal cysts, with no evidence of obstruction. 

An April 2008 VA treatment note reflected complaints of low back pain; urinary urgency and frequency; and a history of BPH.  The diagnostic assessment was urinary tract infection.  

A June 2008 VA urology note reflected complaints of a persistent urinary tract infection, despite antibiotics.  A history of perianal and scrotal abscesses was noted.  The Veteran complained of nocturia and voiding 6 to 7 times per night, with burning, slow stream, straining, and hesitancy.  

A June 2008 VA urology note also reflected multiple benign left renal cysts, recurrent urinary tract infections, lower urinary tract symptoms, and a history of prostatitis and peroneal abscesses.  

In a July 2009 statement, the Veteran reported worsening symptoms, and stated that has to urinate up to 8 times per night and occasionally wets himself.  He also stated that he had to use absorbent pads, which needed to be changed at least 4 times per day. 

The Veteran underwent a November 2009 VA genitourinary examination.  He endorsed bouts of prostatitis, frequent urinary tract infections (every three months, responsive to antibiotics), multiple perineal abscesses (none requiring surgery, only mostly self-drained), and frequent urination (up to six times per night, three to four times during the day with urgency).  He stated that he did not use pads or diapers.  The diagnostic impression was nocturia, decreased force of stream, secondary to benign prostatic hypertrophy, with multiple perineal and periurethral abscesses with recurrent prostatitis.  

VA treatment records dated throughout 2010 and 2011 reflect ongoing complaints of urinary symptoms, to include frequency, burning, and urinary tract infections.  

The Veteran submitted a statement in March 2010 indicating that his prostate was "very bad" and that he was urinating up to 8 times per night; he also stated that he occasionally ended up wetting on himself when he was unable to get to the bathroom in time.  

In March 2011, the Veteran's wife submitted a letter stating that the Veteran was having difficulties falling and staying asleep due to frequent urination (up to 7 times per night), and that he would wet himself on occasion. 

In February 2012, the Veteran underwent a VA urinary tract examination.  The pertinent diagnosis was genitourinary residuals, status post urethral stricture disease, secondary to pelvic gunshot wound.  Subjectively, the Veteran reported a history of prostatitis but could not recall the last episode of such condition; he also reported a history of multiple abscesses of the perineum (which he self-treats with at- home draining), urinary tract infections (last documented UTI in June 2010), and worsening urinary frequency and urge incontinence resulting in use of adult absorbent pads and briefs (which he was wearing at the time of the examination appointment).  Objectively, voiding dysfunction with urinary leakage was present, requiring absorbent materials which much be changed more than 4 times per day.  The voiding dysfunction did not require the use of an appliance.  The voiding dysfunction also resulted in increased urinary frequency, including daytime voiding intervals of 1 to 2 hours, and nighttime awakening to void 5 or more times per night.  Signs and symptoms of obstructed voiding included hesitance, slow or weak stream, decreased force of stream, and recurrent urinary tract infections secondary to obstruction.  The Veteran did not have a history of urethral or bladder calculi or recurrent stone formation in the urethra or bladder.  The Veteran did have a history of recurrent symptomatic bladder or urethral infections, which required only short-term outpatient antibiotic therapy.  The Veteran did not have any findings, signs or symptoms attributable to a bladder or urethral fistula, nor had he undergone any surgery for such.  There were no bladder injuries or neoplasms/tumors.  

Based on the medical and lay evidence outlined above, and resolving all doubt the Veteran's favor, the Board finds that his urethral stricture disease with periurethral abscess and chronic prostatitis, more nearly approximates a 60 percent evaluation for voiding dysfunction, but no higher; this is so throughout the entire period on appeal (that is, since December 2005). See 38 C.F.R. § 4.155a, DCs 7518 (urethra stricture) and 7527 (prostate gland injuries).  

In so finding, the Board notes that the Veteran's genitourinary condition is medically complex and involves a multitude of GU symptoms, not only related to voiding dysfunction, urinary leakage, urinary frequency, and obstructed voiding, but also recurrent urinary tract infections, chronic prostatitis, and multiple, recurrent peroneal and periurethral abscesses requiring drainage, among other chronic symptoms.  This is has been true throughout the entire appeals period.  In addition, the Veteran has consistently endorsed increasingly frequent daytime and nighttime urination - anywhere from three to eight times per night, and increasingly shorter daytime intervals of voiding; problems with urinary control (i.e., not getting to the bathroom in time and wetting himself as a result); worsening urinary leakage; burning, straining, and hesitancy with urination; weak stream; and painful peroneal and periurethral abscesses requiring outpatient and/or self draining. See also Hearing Transcript.  

The Board finds that, overall, these persistent and chronic symptoms are commensurate with a 60 percent evaluation for voiding dysfunction.  The Board recognizes that the medical evidence did not indicate that the Veteran's urinary leakage symptoms required the use of absorbent materials until February 2012 (at which time a 60 percent evaluation was granted pursuant to the voiding dysfunction provisions); however, the Board also notes that the Veteran submitted a statement as early as July 2009 indicating that he was not able to make it to the bathroom, and that he regularly wore absorbent materials which required changing up to 4 times per day. See July 2009 Statement.  He again reported these symptoms in March 2010 and his wife endorsed the same in a March 2011 statement.  In essence, the Veteran and his wife have reported ongoing, worsening genitourinary symptomatology since the inception of this appeal.  The Veteran and his wife are competent to report on such matters and there is no evidence of record which expressly contradicts either of their statements.  Moreover, the Board has no reason to doubt the credibility of their statements regarding the nature and severity of his urinary dysfunction.  

In sum, when viewing the Veteran's disability picture as a whole, the Board finds that a 60 percent evaluation for urethral stricture disease is warranted throughout the appeals period.  This is the maximum rating permitted for urinary leakage/voiding dysfunction.   

The Board has also considered whether the Veteran could receive higher evaluations under an alternate diagnostic code(s).  As noted, a 60 percent evaluation is the maximum rating permitted for urinary leakage/voiding dysfunction.  A higher rating cannot be assigned for urinary frequency as the maximum rating for those symptoms is 40 percent.  In addition, a higher rating cannot be assigned for obstructed voiding, as the maximum rating permitted for those symptoms is 30 percent. See 38 C.F.R. § 4.115a. (only the predominant area of dysfunction is considered for rating purposes).  Moreover, separate ratings under any of these provisions (i.e., voiding dysfunction/leakage, urinary frequency, and obstructed voiding) would essentially amount to impermissible pyramiding.  See 38 C.F.R. § 4.14 (avoidance of pyramiding); see also 38 C.F.R. § 4.115a (only the predominant area of dysfunction is considered for rating purposes).

Additionally, the Veteran has not been shown to have renal dysfunction, so a higher or separate rating is not warranted under those provisions and related Diagnostic Codes. See 38 C.F.R. § 4.115a (Renal dysfunction), Diagnostic Codes 7500-7509. 

Diagnostic Codes 7516 and 7519 provide for higher, 100 percent ratings for genitourinary diagnoses; however, the Veteran has not been shown to have fistula of the bladder (DC 7516) or fistula of the urethra (DC 7519).  Again, as confirmed by the December 2012 genitourinary examination, the Veteran has urethral abscesses, not fistulas.  

The Board notes that the Veteran has been shown to have renal cysts (cysts of the kidneys); however, this condition has not been related to the service-connected genitourinary condition.  As such, a higher or separate rating under Diagnostic Code 7533 (Cystic diseases of the kidneys) is not warranted. 

Lastly, the Veteran has also been shown to have prostatitis; this disease entity has been included as part of the urethral stricture rating. See Diagnostic Code 7527.  In this case, a separate evaluation for prostatitis would violate the rule against pyramiding. See 38 C.F.R. § 4.14.  For purposes of determining whether the Veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259 (1994).  Given the overlapping symptoms attributed to the urethral stricture disease and residual prostatitis (i.e., voiding dysfunction, leakage, frequency, obstructed voiding, recurrent urinary tract infections, etc.), a separate rating for prostatitis will not be assigned.  

The Board has also considered whether this case should be referred to the Director, Compensation and Pension Service, for extraschedular consideration for rating of the Veteran's service-connected urethral stricture disease with prostatitis.  The governing norm in such exceptional cases is:  A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b).  

The Court of Appeals for Veterans Claims has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun, supra. First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

If the rating criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun, supra.  In this case, the Veteran's disability level is characterized by severe voiding dysfunction, with symptoms and frequency fully contemplated in the rating criteria and rated as 60 percent disabling throughout the appeals period.  The evidence shows the need to change absorbent pads multiple times per day as directly contemplated by the applicable rating criteria.  Therefore, a disability picture such that the rating criteria are inadequate is not shown.  As such, referral to the Director, Compensation and Pension, is not warranted. 

For the reasons discussed above, the Board finds that an increased rating of 60 percent, but not in excess thereof, is warranted from December 23, 2005, to January 31, 2012, and that a rating in excess of 60 percent is not warranted for the period beginning February 1, 2012.

c. Gunshot wound to the abdomen with intestinal perforation, post-operative closed ileocolostomy.

The Veteran contends that he is entitled to a higher evaluation for residuals of a gunshot wound injury to the abdomen, with intestinal perforation, post-operative closed ileocolostomy. (Note: this discussion only addresses residual digestive symptoms; residual gunshot wound muscle injuries and scars to the abdomen are separately discussed in the REMAND portion below). 

By way of history, service-connection for gunshot wound residuals with intestinal perforation, status post ileo-colostomy, closed was granted in a July 1974 rating decision; a 30 percent evaluation was assigned under Diagnostic Code 7301.  In pertinent part, service-treatment records reflected that the Veteran sustained a gunshot wound to the right iliac crest in June 1966.  He was treatment with debridement of the wound; the wound was left open.  The Veteran was scheduled for closure of the wound in June 1966 when it was discovered that there was fecal material in the iliac crest wound; he then underwent an exploratory laparotomy.  After this procedure, the Veteran started to pour large quantities of fecal matter from the wound in the region of the right flank. He was again taken to surgery for at which time an ileo-transverse colostomy was performed.  The ileo-transverse colostomy was later taken down and the colon was closed.  

The Veteran submitted his claim for an increased rating for this condition in July 2009.  In a January 2010 rating decision, the RO denied the Veteran's claim for an increased rating for intestinal residuals.  In March 2010, the Veteran submitted a notice of disagreement.  A May 2011 rating decision continued the 30 percent rating.  A statement of the case was issued in February 2012, and the Veteran submitted a timely appeal later that same month. 

VA treatment records dated from 2008 to 2011, are largely silent as to digestive system/abdominal condition complaints.  The Veteran routinely denied having bowel problems upon VA examination.  

A November 2009 VA examination indicated that the Veteran last underwent abdominal surgery in 1984; he reported that he was not currently on any medications and that he had normal bowel movements. 

The Veteran underwent a VA intestines examination in February 2012.  The pertinent diagnosis was status post ileocolostomy secondary to a gunshot wound.  The VA examiner noted that the Veteran did not report any abdominal residuals (other than tender scars) at the last VA examination in November 2009.  The Veteran denied having any abdominal surgeries subsequent to 1984, at which time he underwent reanastomosis.  Presently, he stated that the old ileostomy site stings and burns when he strains during bowel movements or lifts something up.  The pain was rated as a 9/10.  He endorsed regular bowel movements.  The Veteran stated that his main concern "today was pertaining to the abdominal residuals of his gunshot wound/surgeries and residuals scars."  Notably, no scar examination was conducted at that time.

Objectively, the only symptoms present were intermittent acute abdominal pain associated with lifting or straining (i.e., the scars).  A contemporaneous abdominal x-ray revealed no evidence of acute or chronic intrabdominal disease or process.  There was evidence of prior projective injury to the right lateral mid to lower abdomen.  No other pertinent digestive/abdominal findings were noted. 

The Veteran provided testimony before the undersigned in January 2013; he did not endorse any digestive problems or abdominal symptoms, other than his associated scars.  

The Veteran's intestinal GSW residual disability is currently rated as 30 percent disabling under Diagnostic Code 7301.  Under DC 7301, a 30 percent rating is warranted for moderately severe symptoms, including partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain.  A 50 percent rating is warranted for severe symptoms, including definite partial obstruction shown by x-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage.  A note to the criteria provides that ratings for adhesions will be considered when there is history of operative or other traumatic or infectious (intrabdominal) process, and at least two of the following: disturbance of motility, actual partial obstruction, reflex disturbances, presence of pain. 38 C.F.R. § 4.114. 

Words such as "mild," "moderate," "moderately severe," and "severe" are not defined in the Rating 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.  All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

Based on the medical and lay evidence outlined above, the Board finds that the Veteran's residuals of a gunshot wound with intestinal perforation, post-operative closed ileocolostomy disability does not approximate the criteria for a rating in excess of the current 30 percent evaluation.  Indeed, the evidence of record does not show any current symptoms associated with this disability (other than painful scarring which is separately discussed in the REMAND portion below).  The Veteran does not contend otherwise.  Thus, the Veteran's symptoms do not meet the criteria for a higher evaluation. See 38 C.F.R. § 4.114, Diagnostic Code 7301.  As there is no medical evidence of symptoms currently associated with this disability, there is no evidence of severe symptoms.  Therefore the criteria for a higher rating have not been met. 38 C.F.R. § 4.7.

The Board has also considered whether the Veteran could receive a higher rating under any other Diagnostic Codes.  However, in the absence of additional symptomatology/diagnoses, the Board can find no basis upon which to evaluate the Veteran's largely asymptomatic disability under any other Diagnostic Codes.  

The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1); see Thun, supra. 

An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability.

If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116  . When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) ; Thun, 22 Vet. App. at 116. 

In this case, the schedular evaluation is not inadequate.  An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability, but the medical evidence reflects that those manifestations are not present in this case.  For example, there is no evidence that the Veteran's disability is manifested by the severe symptomatology contemplated by the next-higher 50 percent rating under DC 7301.  Additionally, the currently assigned rating and diagnostic criteria more than adequately describe the severity and symptomatology of the Veteran's disorder, which was shown to be largely asymptomatic upon VA examinations.  As the rating schedule is adequate to evaluate the disabilities, referral for extraschedular consideration is not in order.

Thus, the Board determines that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent for the Veteran's residuals of a gunshot wound with intestinal perforation, post-operative closed ileocolostomy disability.

IV. Earlier effective for a 40 percent rating- urethral stricture disease

The Veteran alleges entitlement to an effective date prior to May 21, 2007, for the 40 percent evaluation assigned for his service-connected urethral stricture disability.  

Generally, the effective date of an evaluation and award of compensation for an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1).  A claim is "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p)  (2012).  An informal claim is "[a]ny communication or action indicating intent to apply for one or more benefits." 38 C.F.R. § 3.155(a) (2012). 

VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).  In some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b) (2012).  The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of a claim when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157(b).  A report of examination implies that the medical record describes the results of a specific, particular examination. Massie v. Shinseki, 25 Vet. App. 123, 132-34 (2011) (noting that a letter from a VA physician generated for a pending Social Security claim was not a report of examination). 

An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).  Under these circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400 (0)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). 

In December 2005, the Veteran submitted a claim for service connection for prostatitis.  In a December 2006 rating decision the RO increased the Veteran's evaluation to 20 percent for urethral stricture disease, to include prostatitis, effective December 23, 2005.  The Veteran appealed the 20 percent evaluation assigned therein, and the current appeal ensued.  In a January 2009 rating decision, the RO granted an increased evaluation of 40 percent, effective May 21, 2007, for urethral stricture disease with prostatitis.  The Veteran then appealed the effective date of the 40 percent evaluation, indicating that he wanted the 40 percent evaluation to be assigned prior to May 2007.  In this decision, however, the Board has granted a 60 percent evaluation (which is the highest schedular rating permitted for this disorder) throughout the entire period on appeal - that is, since December 23, 2005.  Thus, the Veteran's claim is moot because it has essentially been granted in full.

V. Timely Substantive Appeal

The Veteran essentially contends that he never received a June 2009 statement of the case and accompanying VA Form 9 with respect to the issue of entitlement to an effective date earlier than February 1, 2007, for the additional allowance of a dependent spouse.

An appeal to the Board "consists of a timely filed Notice of Disagreement in writing and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal." 38 C.F.R. § 20.200 (2012).  The substantive appeal can be set forth on a VA Form 9 (Appeal to the Board of Veterans' Appeals ) or on correspondence specifically identifying the issues appealed and setting out specific arguments relating to errors of fact or law made by the RO. 38 C.F.R. § 20.202 (2012).  To be considered timely, the substantive appeal must be filed within sixty days from the date that the RO mails the statement of the case to the appellant or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed. 38 U.S.C.A. § 20.302(b) (2012).  Additionally, an extension for filing a substantive appeal may be granted on motion filed prior to the expiration of the time limit described above. 38 C.F.R. § 20.303 (2012).  If the claimant fails to file a substantive appeal in a timely manner, and fails to timely request an extension of time, "he is statutorily barred from appealing the RO decision." Roy v. Brown, 5 Vet. App. 554, 556 (1993). 

On July 9, 2008, the RO mailed notification to the Veteran of a July 2008 decision that awarded an additional allowance for a dependent (spouse), effective February 1, 2007.  A notice of disagreement challenging the February 1, 2007, effective date assigned by the RO's July 2008 decision was received on July 22, 2008.  On June 11, 2009, the RO mailed a statement of the case to the Veteran at his address of record at the time; he was informed that to perfect his appeal he must submit a Substantive Appeal or request an extension 60 days from the date of the letter.

Thereafter, the Veteran never submitted a substantive appeal as to this issue, and there is no document in the file received within 60 days of the SOC, or within one year of the July 2008 decision, that could be construed as a Substantive Appeal as defined in 38 C.F.R. § 20.202, or as a request for an extension under 38 C.F.R. § 20.303.  Significantly, the Veteran does not dispute that a Substantive Appeal was not timely filed.

During the January 2013 Travel Board hearing, the Veteran testified that he never received the necessary forms (i.e., the statement of the case and VA Form 9) to perfect his appeal to the Board.  He stated that he called the RO on several occasions after being told that he never submitted a timely appeal, and by the time they resent the forms to him, it was too late.  

The Board's review of the relevant evidence reveals that the June 2009 SOC and accompanying VA Form 9 were sent to the Veteran's address of record at that time. The SOC, sent to that address, was not returned as undeliverable.  Further, the RO was not notified of any changes with respect to the Veteran's home address until March 2010 and, thus, it does not appear that the SOC was mailed to the wrong address (nor does the Veteran contend that this is the case here). See March 2010 Statement From Veteran.  The next correspondence regarding the dependency issue was not received until March 2010, at which time the Veteran stated that he was appealing the decision for the "second time."  This statement tends to indicate that the Veteran was in disagreement with the initial July 2008 decision, as well as the June 2009 denial contained in the SOC.  To date, the Veteran has yet to submit any VA Form 9 as to this issue. 

The Board acknowledges that the statutory timeline for the submission of a timely Substantive Appeal is not jurisdictional in nature, permitting the applicable timeliness requirement to be waived and/or tolled by VA, in some circumstances. 

Pursuant to 38 C.F.R. § 3.109(b), time limits for filing may be extended in some cases on a showing of "good cause."  However, in Corry v. Derwinski, 3 Vet. App. 231 (1992), the Court held that there is no legal entitlement to an extension of time, and that 38 C.F.R. § 3.109(b) commits the decision to the sole discretion of the Secretary.  Specifically, 38 C.F.R. § 3.109(b) requires that, where an extension is requested after expiration of a time limit, the required action must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. Here, as noted above, there is no evidence that the Veteran filed for an extension.

The Board may, in its discretion, waive the timely filing of a Substantive Appeal in certain circumstances as held in Percy v. Shinseki, 23 Vet. App. 37 (2009).  The case at hand, however, is distinguishable from Percy, in that in this case the Veteran was never allowed to proceed under the impression that a late filing had been accepted and would be considered on the merits.  Here, by RO letter on June 11, 2009, the Veteran was advised that he had allowed 60 days to file a Substantive Appeal or to file for an extension.  He did not submit a VA Form 9 thereafter.  In a March 2010 letter, the RO advised the Veteran that had until August 10, 2009, to submit the VA Form 9 to perfect his appeal as to the earlier effective date for dependency and that, to date, no VA Form 9 as to that issue had been received.  In April 2011, the Veteran submitted a statement indicating his disagreement and intent to appeal the dependency issue.  In response to the Veteran's letter, the RO again sent a letter to the Veteran in April 2011, explaining that he had not submitted a timely substantive appeal and the July 2008 decision on the claim for an earlier effect date for dependency was final.  The Veteran submitted a timely notice of disagreement as to the RO's April 2011 determination; a statement of the case was issued in May 2012; and in June 2012, the Veteran submitted a substantive appeal.  

In sum, as there is no evidence that VA ever treated the Veteran's claim as if it had been timely appealed, it cannot be said that VA waived (either explicitly or implicitly) the issue of timeliness in the filing of the Veteran's Substantive Appeal.  Therefore, unlike in Percy, the Veteran in this case is not entitled to the expectation that VA (to include the Board) would treat his appeal as timely filed.

There are other circumstances where VA's statutory period to perfect a timely appeal to the Board may be equitably tolled. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S. Ct. 453 (1990).  VA's statutory filing time periods may be equitably tolled where the Veteran has "actively pursued his judicial remedies by filing a defective pleading during the statutory period" or "has been induced or tricked by [VA or an employee] into allowing the filing deadline to pass." Irwin, 498 U.S. at 96.  Further, in certain circumstances, mental illness may justify tolling. Barrett v. Principi, 363 F.3d 1316, 1320 (Fed. Cir. 2004).  However, none of the aforementioned circumstances have been alleged or otherwise shown by the evidence in this case. 

The Board acknowledges that the Veteran's main contention is that he never received the June 2009 statement of the case.  That said, the bottom line in this case is that the Veteran did receive or should have received the statement of the case and if he did not, it was through no fault of VA, who sent it to the Veteran's address of record at the time.  Therefore, the Board must presume that the Veteran received proper notification as to his obligation to perfect his appeal by timely filing a substantive appeal. See Jones v. West, 12 Vet. App. 98, 101 (1998) (a presumption of regularity attaches to the mailing of notice to the latest address of record); Hyson v. Brown, 5 Vet. App. 262, 264-65 (1993) (the presumption of regularity does not attach when notice is returned as undeliverable).  The Board notes that the Veteran may rebut that presumption by submitting "clear evidence" to the effect that VA's regular mailing practices are not regular or that they were not followed.  Absent evidence that the claimant notified VA of a change of address and absent evidence that any notice sent to the appellant at his or her last known address has been returned as undeliverable, VA is entitled to rely on that address, as was done in this case. Cross v. Brown, 9 Vet. App. 18, 19 (1996). In sum, the presumption of regularity has not rebutted in this case. 

To conclude, the Veteran did not perfect a timely appeal as to the issue of entitlement to an earlier effective date for the additional allowance of a dependent, and equitable remedies are not properly for application given the present facts.  Accordingly, absent a timely Substantive Appeal, a timely request for an extension of time for submission, or a rebuttal of the presumption of regularity, and with no good cause shown for waiver of timeliness of a Substantive Appeal, the Board, in its discretion, declines to adjudicate the claim on the merits.


ORDER

The claim for service connection for a groin injury is reopened, and the claim is granted to this extent only. 

Entitlement to service connection for erectile dysfunction as secondary to gunshot wound residuals to the abdomen is granted.  

Entitlement to an initial evaluation in excess of 30 percent for PTSD is denied. 

An increased evaluation of 60 percent, but no higher, for urethral stricture disease, from December 23, 2005, to January 31, 2012, is granted, subject to the laws and regulations governing monetary awards.

An evaluation in excess of 60 percent for urethral stricture disease, beginning February 1, 2012, is denied. 

An evaluation in excess of 30 percent for the GSW residuals of the abdomen, with intestinal perforation, post-operative closed ileocolostomy, is denied.

The appeal to establish that the Veteran timely filed a Substantive Appeal in the matter of entitlement to an effective date earlier than February 1, 2007, for the additional allowance of a dependent spouse, is dismissed for lack of jurisdiction.




REMAND

I. Service Connection - Disability Manifested by Insomnia 

The Veteran contends that he has a disability manifested by insomnia that is related to his exposure to Agent Orange during his period of military service in the Republic of Vietnam. See February 2011 Report of General Information.  The Veteran also contends that his disability manifested by insomnia is secondary to pain caused by his service-connected gunshot wound disabilities (hand neuropathy, in particular), nocturia caused by his service-connected urethral stricture with prostatitis, and/or service-connected PTSD (i.e., secondary to his service-connected disabilities). See Hearing Testimony, generally; see also VA Treatment Record, July 2009.

VA treatment records (see, e.g., July 2009) and a VA PTSD examination (October 2010) reflect complaints of insomnia and sleep impairment associated with reported nocturia (nighttime urinary frequency), hand pain/neuropathy (pain), and PTSD.  

Service connection is warranted for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310.  The Court has also held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995).

In light of the Veteran's documented problems with insomnia, and given that he has not been afforded VA examinations during this appeal for this condition, the Board finds that this issue must be remanded for an examination with opinion as to the etiology of the claimed disability. 

Finally, and with respect to the Veteran's claim for service connection for a disability manifested by insomnia, the Veteran has not been notified of the information and evidence needed to substantiate a claim for secondary service connection under 38 C.F.R. § 3.310 (2012).  This should be accomplished upon remand. 

II. Residuals, gunshot wound, right hand with neuropathy (20 percent disabling) 

The Veteran contends that he is entitled to a higher rating for gunshot wound residuals to the right hand, which is currently evaluated as 20 percent disabling under Diagnostic Code 5309 (2012) (Muscle Group IX). See 38 C.F.R. § 4.73, DC 5039.  During his January 2013 hearing before the undersigned, the Veteran testified that he is right-hand dominant and that he is unable to work or lift anything due to his right hand symptoms.  He further endorsed painful scarring in the palm area; an inability to bend his finger; nerve pain; pain running up his arm and neck; decreased grip strength; and numbness in the hand.  The Veteran expressly stated that his right hand disability had worsened in severity.  

The Veteran's claim for an increased rating was received in July 2009.  A January 2010 rating decision continued the 20 percent evaluation.  In March 2010, the Veteran submitted a Notice of Disagreement as to that determination; a statement of the case was issued in February 2012; and a VA Form 9 was filed later that month.  The Board additionally notes that a May 2011 rating decision continued to deny the Veteran's claim for an increased rating. 

While the record contains some recent clinical findings related to the hand (including neuropathy), the Veteran has not been afforded a comprehensive VA examination (i.e., joints; hands, thumb and fingers; muscles, and nerves) to determine the current nature and extent of his gunshot wound residuals affecting the hand.  In light of the Veteran's complaints of worsening hand pain, limited motion of the finger(s), and nerve pain, he should be scheduled for the appropriate VA examinations upon remand. (Note: painful scars of the hand/palm will be discussed below).  



III. Entitlement to an evaluation in excess of 30 percent for residuals of a gunshot wound to the right lower abdomen, with injury to muscle group XIX

The Veteran contends that he is entitled to a higher rating for gunshot wound residuals to the abdomen, which is currently evaluated as 30 percent disabling under Diagnostic Code 5319 (2012) (Muscle Group XIX).  At his hearing before the undersigned, he endorsed a lot of stinging and burning in the area of his injury, as well as throbbing pain when bending over.  He described the pain as severe.  

The Board notes that the Veteran underwent a VA general examination in October 2011, but this examination report did not specifically address the abdominal muscle injury in question here (i.e., Muscle Group XIX).  In light of the Veteran's complaint of worsening/severe abdominal muscle pain, and further considering that the last comprehensive VA muscle examination was conducted in November 2009, the Board finds that the Veteran should be scheduled for a VA examination upon remand to determine the current nature and severity of his GSW residuals to the right lower abdomen. 

IV. Gunshot wound residuals and entitlement to an evaluation in excess of 30 percent for scars of the right flank, right lower abdomen, right mid-abdomen, right posterior hip, right third finger, and right mid-palm. 

Throughout the course of this appeal, the Veteran has variously described the scars to his right flank, right lower abdomen, right mid-abdomen, right posterior hip, right third finger, and right mid-palm as painful, burning, and stinging, and causing pain with motion.  At his hearing before the undersigned, he described his hip scar as tender; his colostomy scar as plaguing; and his palm scar as sore.  He also stated that he had additional scarring in the groin area which had not been identified upon previous examination.  

The Veteran has not been afforded a comprehensive VA scar examination since November 2009.  In light of the Veteran's complaints of worsening scar and limited/painful motion, and further considering that the Veteran has identified additional scarring (to the groin as indicated below), the Board finds that he should be afforded a current VA scar examination (both abdominal and hand scars) upon remand.  

In pertinent part, the Board notes that the Veteran's scars are currently evaluated as 30 percent disabling under DC 7804.  However, the Veteran could still receive higher ratings for his scars, and specifically, for any disabling effects not considered under Diagnostic Code 7804. See 38 C.F.R. §  4.118, DCs 7804 and 7805.  In addition, Note (2) of Diagnostic Code provides that, if one or more scars are both unstable and painful, the rater is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (2).  These provisions should be taken into consideration when evaluating the Veteran's scars upon remand. 

V. Groin Injury 

Lastly, as noted above, the Veteran contends that he either directly injured his groin in-service or that he has residual GSW scars to the groin which are very painful and not yet service-connected. 

To date, the Veteran has not been afforded a VA examination to determine the exact nature and etiology of his claimed groin injury or residual scarring.  


VI. Entitlement to TDIU. 

During his January 2013 hearing, an in other statements for record, the Veteran stated that he was unable to hold a position of employment in his chosen field due to symptoms associated with his service-connected disabilities (primarily GSW residual disabilities).  The Board concludes that this statement and others by the Veteran raise the issue of entitlement to TDIU. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the claimant.  The Court further held that when evidence of unemployability is submitted at the same time that the claimant is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. Here, the claim for TDIU is part of the claim for higher rating and as such, a determination must be made with respect to the TDIU claim.

With respect to the Veteran's TDIU claim, the Board finds that the resolution of his remanded service connection and increased rating claims may impact this claim. Indeed, if the RO awards service connection and/or increased ratings for the issues remaining on appeal, and a single or combined 100 schedular evaluation resulted, the total rating issue will be rendered moot. See Green v. West, 11 Vet. App. 472, 476 (1998), (citing Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994));
VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999).  The Board further notes that service connection for erectile dysfunction has been granted herein; the RO obviously has yet to assign a disability rating to this disorder.  Under these circumstances, the Board finds that, as the above issues are inextricably intertwined with the TDIU issue, they should be considered together, and thus a decision by the Board on the Veteran's TDIU claim would now be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).


Accordingly, the case is REMANDED for the following action:

1. Provide the Veteran with notice as to how to substantiate a claim for increase based on TDIU in accordance with all applicable laws and implementing regulations and request that he complete a TDIU claim form.  Then conduct any development deemed appropriate based on the completed claim form. 

2. Provide the Veteran with the information and evidence needed to substantiate a claim for secondary service connection for a disability manifested by insomnia secondary to pain and nocturia associated with his service-connected disabilities under 38 C.F.R. § 3.310.  

3. Obtain all records of VA treatment from March 2011 to the present.

4. Schedule the Veteran for a VA examination to determine the nature and etiology of any current disability manifested by insomnia.  All indicated tests and studies shall be conducted.

The claims folder, including this remand and any relevant records contained in the Virtual VA system, along with records obtained pursuant to this remand, must be sent to the examiner for review; consideration of such shall be reflected in the completed examination report or in an addendum. 

The examiner shall answer all of the following questions:

(a) Does the Veteran have a current disability manifested by insomnia that is separate and distinct from his service-connected PTSD?

(b) If the Veteran has a current disability manifested by insomnia that is separate and distinct from his service-connected PTSD, is it at least as likely as not (50 percent probability or more) that the current sleep disability had its onset in service, is related to the Veteran's presumed exposure to herbicides in service, or is otherwise related to a disease or injury in service?

(c) If the Veteran has a current disability manifested by insomnia that is separate and distinct from his service-connected PTSD, is it at least as likely as not (50 percent probability or more) that the current sleep disability was caused (in whole or in part) OR aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected: PTSD; erectile dysfunction; nocturia or pain caused by the service-connected urethral stricture disease with periurethral abscess and post-operative status, suprapubic cystostomy and internal urethrotomy to include prostatitis; pain caused by service-connected residuals of a gunshot wound to the abdomen with intestinal perforation, post-operative closed ileocolostomy; pain caused by scars of right flank, right lower abdomen, right mid-abdomen, right posterior hip, right third finger and right mid-palm associated with residuals of a gunshot wound to the abdomen with intestinal perforation, post-operative closed ileocolostomy; pain caused by service-connected residuals of a gunshot wound to the right lower abdomen with injury to muscle group XIX; pain caused by service-connected residuals of a gunshot wound to the right hand, to include peripheral neuropathy; and/or pain caused by service-connected residuals of gunshot wound, to include tendonitis right hip, right posterior pelvic area with injury to muscle group XVII, and fractured pelvis, healed?

In formulating the above opinions, the examiner must acknowledge and comment on any separate and distinct sleep disabilities, the Veteran's presumed exposure to herbicides in service, and his reports of sleep problems associated with his PTSD, urethral stricture with prostatitis, and hand neuropathy. 

The examiner must provide reasons for each opinion given. 

The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions.  If the examiner rejects the Veteran's reports regarding symptoms, the examiner must provide a reason for doing so. 

If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010).  (The AOJ shall ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.)

5. Arrange for the Veteran to undergo an appropriate VA medical examination or appropriate VA medical examinations to determine the current nature, extent, and severity of all residuals of his gunshot wound to the right hand, to include any residual right wrist or arm disabilities.  The claims file shall be made available to and reviewed by each examiner.  Each examiner also shall obtain from the Veteran a full history of his past and present relevant symptomatology. 

A physical examination and all tests, studies, and/or evaluations deemed necessary next shall be performed. This shall include, at a minimum, any muscle group impairment, any limitation of motion, and any nerve involvement of all potentially affected areas (wrist, hand, forearm, etc.).  Specifically, findings relevant to the criteria in 38 C.F.R. §§ 4.56; 4.71a, Diagnostic Codes 5213, 5228-30;4.73, Diagnostic Codes 5307-5309 and Muscle Group IX. 

Diagnostic Codes 8511-8517 (2012) shall be provided if applicable. (Note: a July 2011 VA examiner confirmed residual ulnar involvement).  All results shall be reported and discussed in detail by each examiner.  If muscle group impairment or nerve involvement is found, the muscle group(s) or nerve(s) affected and the severity of the affect specifically shall be stated.  Each examiner finally shall opine with respect to each right hand, wrist, and/or forearm problem found, whether it constitutes a residual of the Veteran's in-service gunshot wound.  

A complete rationale with specific comment on the pertinent medical and lay evidence of record shall be provided for these opinions as well as every other opinion rendered.  The above actions shall be documented fully by each examiner in an examination report.

6. Arrange for the Veteran to undergo an appropriate VA medical examination or appropriate VA medical examinations to determine the current nature, extent, and severity of all residuals of a gunshot wound to the abdomen, muscle group XIX..  The claims file shall be made available to and reviewed by each examiner.  Each examiner also shall obtain from the Veteran a full history of his past and present relevant symptomatology.  Any indicated studies should be performed, including obtaining X-rays. 

After examining the Veteran, reviewing the claims file, and conducting any testing deemed necessary, the examiner should fully describe any and all functional deficits associated with the service-connected gunshot wound residuals, muscle group XIX.  If possible the examiner should describe the loss of function as slight, moderate, moderately severe, or severe. See Diagnostic Code 5319.  If the service-connected residuals of a gunshot wound to the abdomen affect any other muscle groups, the examiner should so state. 

A complete rationale with specific comment on the pertinent medical and lay evidence of record shall be provided for these opinions as well as every other opinion rendered.  The above actions shall be documented fully by each examiner in an examination report

7. Arrange for the Veteran to undergo the appropriate VA examination(s) of his service-connected gunshot wounds scars of the hand and abdomen.   

The claims folder, to include a copy of this remand, must be made available to and reviewed by the examiner(s) in conjunction with the examination report(s). Any indicated studies should be performed.  Physical examination, along with any necessary tests and/or studies, should be conducted in order to ascertain the severity of the Veteran's service-connected scar residuals of the gunshot wound of the right hand and abdomen.  

The examiner should indicate the location and size of any and all scars on the Veteran's (i) right hand/palm and (ii) abdomen (to include the groin area, if found) resulting from the gunshot wound incurred in service and resulting ileocolostomy procedure.  The examiner should note whether such scars are associated with underlying soft tissue damage, whether there is frequent loss of covering of the skin over the scar (i.e., unstable), or whether the scars are painful on examination.  

The examiner should also indicate whether there is limitation of function of the Veteran's right hand, right hip, back, trunk, and/or any other area(s) of the lower and/or upper extremities affected by the abdominal and hand scars as a result of any scar and, if so, describe such limitation in detail.  The examiner should also indicate whether there are any other disabling effects, per Diagnostic 7805. 

8. Schedule the Veteran for a VA examination to determine the nature and etiology of any current disability manifested by groin pain, to include a groin injury and/or groin scarring.  The claims file must be provided to the examiner for review in conjunction with the examination, and such review should be noted in the examination report.  All indicated tests and studies shall be conducted.

(i) After reviewing the claims file and conducting any necessary testing, the examiner should render a diagnosis of any current condition(s) the Veteran has relating to his groin.  This should include any scarring in the groin area that is not already-service connected.  

(ii) If any disorder is found, to include scarring, the examiner should than render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that each current disorder found on examination is related to the following in-service events: March 1968 treatment for pain and swelling of the right testis, as well as tender bilateral inguinal lymph nodes, and a diagnosis of right epididymorchitis; (2) gunshot wound injuries to the right flank and, specifically, the right iliac crest in June 1966; or (3) a post-ilio-transverse colostomy later that same month.  The examiner should note that while the STRs are unremarkable for specific complaints of, or injuries to the "groin," they do show ongoing complaints of abdominal and right lower quadrant pain, in addition to epididymorchitis in 1968.  

If any scars of the groin are noted, the examiner is asked to describe location and size of any and all scars.  The examiner should note whether such scars are associated with underlying soft tissue damage, whether there is frequent loss of covering of the skin over the scar (i.e., unstable), or whether the scars are painful on examination.  

In rendering an opinion, the examiner should take into consideration the documented gunshot wound to the abdomen, the subsequent ileocolostomy procedure, the Veteran's report of an injury in service and a continuity of symptoms since service.  A complete rationale should be provided for all opinion given with a discussion of the relevant evidence of record.  If an opinion cannot be rendered without resorting to mere speculation, the examiner should so state and explain why, including whether additional evidence or testing would assist the examiner in rendering an opinion.

9. After the above is complete, take any other development action that is deemed warranted, and readjudicate the claims, to include the TDIU claim.  If a complete grant of the benefits requested as to each issue is not awarded, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board.


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).




______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs