Citation Nr: 1334699 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 09-49 556 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD) and major depressive disorder. 2. Entitlement to a rating higher than 50 percent for sleep apnea. 3. Entitlement to an initial compensable rating, so a rating higher than 0 percent, for erectile dysfunction (ED). 4. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from February 1974 to January 1976 and from April 1979 to September 1997. This appeal to the Board of Veterans' Appeals (Board/BVA) originated from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which confirmed and continued the 50 percent rating for the Veteran's sleep apnea and 10 percent rating for his hypertension. The RO also denied service connection for PTSD, major depressive disorder, and ED, as well as a TDIU. In another rating decision since issued in April 2010, however, the RO granted service connection for the ED, as secondary to or associated with the hypertension, and assigned an initial 0 percent (i.e., noncompensable) rating retroactively effective from March 2, 2007, on the premise that was the date of receipt of this claim. The RO also granted special monthly compensation (SMC) on account of loss of use of a creative organ, also retroactively effective from March 2, 2007. In response, the Veteran appealed this initial rating for his ED. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (When a Veteran appeals an initial rating, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others. This will compensate him for this variance.). He also appealed the effective date for the grant of service connection for his ED and for his SMC. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (Where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date.). In other words, he had to separately appeal these "downstream" issues, which he did. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. The Clemons Court found that, where a Veteran's claim identifies PTSD without more, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that reasonably may be encompassed by the evidence of record. The Clemons Court indicated that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. The June 2008 decision at issue denied service connection not just for PTSD, but also for major depressive disorder. So, in light of the holdings in Clemons, the Board is considering this claim expansively, as for an acquired psychiatric disorder generally that may include PTSD and/or major depressive disorder, etc. In November 2012, the Board determined that the criteria for a higher rating for hypertension were not warranted and that earlier effective dates were not warranted for the grant of service connection for the ED and for the derivative grant of SMC based on loss of use of a creative organ. However, the Board instead remanded these remaining claims of entitlement to service connection for an acquired psychiatric disorder, including PTSD and major depressive disorder, for higher ratings for the sleep apnea and ED, and for a TDIU to the RO via the Appeals Management Center (AMC) for further development. The AMC since has continued to deny them, so they are again before the Board for further appellate consideration. As will be discussed below, however, still further development is needed concerning the derivative TDIU claim. So the Board is again remanding this claim to the RO via the AMC, albeit going ahead and deciding the others, including those forming the basis of this derivative claim. VA's Office of General Counsel has clarified that remanding a derivative TDIU claim (or, here, again remanding) does not preclude the Board from going ahead and deciding the claim for higher ratings for the disabilities forming the basis of the TDIU claim. See VAOPGCPREC 6-96 (Aug. 16, 1996) and VAOGCPREC 12-2001 (July 6, 2001). FINDINGS OF FACT 1. The Veteran did not engage in combat with the enemy and is not shown to currently meet the DSM-IV criteria for PTSD due to any verified traumatic event ("stressor") during his service. 2. It is nonetheless just as likely as not he has PTSD, and there is competent and credible (so ultimately probative) medical evidence indicating his service-connected sleep apnea alternatively has exacerbated his PTSD. 3. From March 2, 2007, to November 30, 2009, his sleep apnea required the use of a continuous positive airway pressure (CPAP) machine, but without evidence of chronic respiratory failure or tracheostomy. 4. From December 1, 2009, to May 19, 2013, his sleep apnea continued to require the use of a CPAP machine and was manifested by chronic respiratory failure. 5. Since May 20, 2013, his sleep apnea has continued to require the use of a CPAP machine, though without evidence of chronic respiratory failure or tracheostomy. 6. He is receiving SMC for his ED on account of loss of use of a creative organ, as a complication of his service-connected hypertension, and it is not shown he has a penile deformity in a physical sense. CONCLUSIONS OF LAW 1. The criteria are met for the establishment of service connection for the PTSD as secondary to the service-connected sleep apnea. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2013). 2. From March 2, 2007, to November 30, 2009, the criteria are not met for a disability rating higher than 50 percent for the sleep apnea. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.97, Diagnostic Code 6847 (2013). 3. From December 1, 2009, to May 19, 2013, however, the criteria are met for a higher 100 percent disability rating for the sleep apnea. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.97, Diagnostic Code 6847 (2013). 4. But since May 20, 2013, the criteria have not been met for a disability rating higher than 50 percent for the sleep apnea. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.97, Diagnostic Code 6847 (2013). 5. The criteria also are not met for an initial compensable rating for the ED. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.21, 4.115b, Diagnostic Code 7522 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist obligations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative of any information and any medical or lay evidence that is necessary to substantiate the claim, including apprising them of the information and evidence the Veteran is responsible for providing versus the information and evidence VA will obtain for him. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be judged on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, showing the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran's sleep apnea claim is an increased-rating claim. The U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) overturned the lower Court's (CAVC's) ruling in concluding that generic or general notice is sufficient and need not be tailored to each specific Veteran's individual circumstances, including in terms of specifying alternative diagnostic codes and the submission of "daily life" evidence, etc. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate effectively in the development of the claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). A May 2007 letter satisfied these notice obligations in terms of apprising him of the type of evidence and information needed to substantiate his service connection and increased rating claims and of his and VA's respective responsibilities in obtaining this supporting evidence. That letter also informed him as to how a "downstream" disability rating and an effective date are assigned in the eventuality service connection is granted, in compliance with Dingess. Consider, as well, that the RO sent him that letter prior to initially adjudicating his claims in the June 2008 decision precipitating this appeal, so in the preferred sequence. Additional VCAA letters were more recently sent to him in October 2010, December 2012, and January 2013, and those also provided information concerning his claims. Moreover, the claims since have been readjudicated in a June 2013 SSOC, so since providing even that additional notice. The appeal for an initial compensable rating for the ED concerns a "downstream" issue. That is, the Veteran appealed the noncompensable rating that initially was assigned for this disability following the determination that he was entitled to service connection for it. In Dingess, the Court held that in cases, as here, where service connection has been granted and an initial disability rating and effective date assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose the notice is intended to serve has been fulfilled. Id., at 490-91. Thereafter, once an NOD has been filed contesting a "downstream" issue such as the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and SOC control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to the downstream element of the claim. See Goodwin v. Peake, 22 Vet. App. 128 (2008). Here, in his May 2010 NOD, the Veteran took issue with the initial noncompensable rating assigned for his ED, and it is presumed he is seeking the highest possible rating or maximum benefit available under the law. Id; see also AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Therefore, in accordance with 38 U.S.C.A. §§ 5103A, 5104, and 7105(d), the RO/AMC sent him an SOC and SSOCs that, in pertinent part, contained the criteria for establishing his entitlement to a higher initial rating for his ED and containing a discussion of the reasons and bases for not assigning a higher initial rating for this now service-connected disability. See 38 U.S.C.A. § 7105(d)(1). Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements of 38 C.F.R. § 3.103(b). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003). Regarding the duty to assist him with his claims, his relevant medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This includes his service treatment records (STRs) and post-service VA and private medical records, as well as records from Social Security Administration (SSA) and his personal lay statements. Pursuant to the Board's November 2012 remand, he most recently underwent VA compensation examinations in May 2013 to ascertain, in pertinent part, the current nature and etiology of any current psychiatric disability and to reassess the nature and severity of his sleep apnea and ED. The May 2013 VA compensation examination reports concerning the psychiatric disability, sleep apnea, and ED claims are sufficiently comprehensive and supported by the other evidence of record. These examinations are adequate for rating purposes as the claims file was reviewed, so the examiners considered the relevant history, and since they examined the Veteran personally, provided findings in sufficient detail to address the applicable rating criteria, and included discussion of the underlying rationale for their opinions and conclusions regarding the severity of these disabilities and, if concerning entitlement to service connection, the equally important issue of etiology. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated, and "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"); Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record."); Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)). Therefore, the examinations are adequate upon which to base a decision in this appeal regarding these claims. Regarding the disabilities that already have been determined to be service connected, the Veteran was specifically examined to reassess the severity of these disabilities. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The reports of the examinations satisfy 38 C.F.R. §§ 3.326 and 3.327. The Board also notes that, in response to the latest SSOC, the Veteran in June 2013 waived his right to wait a minimum of 30 days before recertifying the appeal to the Board and also waived his right to submit additional evidence for initial consideration by the RO/AMC as the Agency of Original Jurisdiction (AOJ). He asked, instead, that his case be immediately recertified to the Board. Thus, it is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate his claims. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand, especially an additional remand, would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran). Standard of Review In deciding these claims, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and the electronic ("Virtual VA") portion of his file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). But while the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail. See id. The analysis below therefore focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning these claims. The Veteran must not assume the Board has overlooked pieces of evidence that are not explicitly discussed in this decision. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to him. Id. Service Connection Claim Service connection is granted if it is shown the Veteran has disability resulting from an injury sustained or a disease contracted in the line of duty during his active military service, or for aggravation during his service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). When determining whether service connection is warranted, all potential theories of entitlement - direct, presumptive and secondary - must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of the claim; (2) competent and credible evidence of in-service occurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the injury or disease in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Certain conditions are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a certain minimum degree (generally meaning to at least 10-percent disabling) within some specified amount of time following service (generally 1 year). This presumption is rebuttable by affirmative evidence to the contrary, however. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In order to establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to link a current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). A rather recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b) , which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439 (1995). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine whether the evidence is "credible", or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether it is also credible). Only if the evidence is both competent and credible does it ultimately have probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). The third and final step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In certain instances, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). On the other hand, laypersons equally have been found not competent in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, but also the Veteran's demeanor when testifying at a hearing when he has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). Service connection for PTSD, in particular, requires: [1] a current medical diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV, presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor), [2] credible supporting evidence that the claimed in-service stressor(s) actually occurred, and [3] medical evidence of a causal relationship between current symptomatology and the specifically claimed in-service stressor(s). See 38 C.F.R. § 3.304(f) (2013). See also Cohen v. Brown, 10 Vet. App. 128 (1997). A "clear" diagnosis of PTSD is no longer required. Rather, a diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a) , which simply mandates that, for VA compensation purposes, all mental disorder diagnoses must conform to the Fourth Edition of the American Psychiatric Association's DIAGNOSTIC AND STASTISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV). See 38 C.F.R. § 3.304(f). The Court has taken judicial notice of the mental health profession's adoption of the DSM-IV as well as its more liberalizing standards to establish a diagnosis of PTSD. The Court acknowledged the change from an objective "would evoke . . . in almost anyone" standard in assessing whether a stressor is sufficient to trigger PTSD to a subjective standard (e.g., whether a person's exposure to a traumatic event and response involved intense fear, helplessness, or horror). Thus, as noted by the Court, a more susceptible person could have PTSD under the DSM-IV criteria given his or her exposure to a traumatic event that would not necessarily have the same effect on "almost everyone." Cohen, 10 Vet. App. 128, 140-141 (1997). The newer DSM-V has now been officially released. However, 38 C.F.R. § 4.130 still explicitly refers instead to the DSM-IV. The regulation legally requires the Board to consider this earlier version of the DSM until such time as the regulation is changed. There is a regulation change in the works that would change the regulation to reference "the current version of the DSM." But it is unclear when that proposed change will be published. Regardless, in the meantime the Veterans Benefits Administration (VBA) and Veterans Health Administration (VHA) essentially have agreed that their target date for moving to DSM-V was October 1st, coinciding with the beginning of the new fiscal year. It therefore is important to bear in mind that the regulation still explicitly refers to the DSM-IV, regardless of the fact that the Board may begin seeing private evidence instead referring to criteria under the succeeding DSM-V. Regardless, if the evidence establishes the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the conditions or hardships of his service, his lay testimony alone may establish the occurrence of the in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f)(2). Where a current diagnosis of PTSD exists, the sufficiency of the claimed in-service stressor is presumed. Cohen v. Brown, 10 Vet. App. 128, 144 (1997). Nevertheless, credible evidence that the claimed in-service stressor actually occurred is also required. 38 C.F.R. § 3.304(f). See Anglin v. West, 11 Vet. App. 361, 367 (1998); Gaines v. West, 11 Vet. App. 353, 357 (1998), Cohen v. Brown, 10 Vet. App. at 138; Suozzi v. Brown, 10 Vet. App. 307 (1997). There are exceptions to this pleading-and-proof requirement, such as when there was a diagnosis of PTSD during the Veteran's service (38 C.F.R. § 3.304(f)(1)), he had "fear of hostile military or terrorist activity" (new subpart (f)(3)), he is a former prisoner of war, i.e., a POW (subpart (f)(4)), or the claim is predicated on personal or sexual assault, that is, military sexual trauma (subpart (f)(5)). In this case, according to a March 2007 psychological report, a private psychologist interviewed the Veteran and ultimately diagnosed him with PTSD secondary to combat experiences, as well as major depression secondary to his "PTSD trauma." The Veteran primarily attributes his PTSD to his work as a medic during service, requiring the treatment of horrific injuries. He claims that in approximately June 1981 in Bad Kissingen, Germany, he treated "PVT Beard" who had fallen out of a three-story window from the barracks and had a large wound on his forehead down to the bone. The Veteran's DD Form 214 confirms that his military occupational specialty (MOS) was medical specialist. There is no record of him ever being in a combat zone, however, or at any of the places he has indicated; nor is there any record of him being awarded any decorations or commendations that would indicate his participation in combat. Combat means he personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and did not merely instead serve in a general combat area or combat zone. This is a case-by-case determination, so fact specific. See Moran v. Peake, 525 F.3d 1157 (Fed. Cir. 2008); VAOPGCPREC 12-99 (October 18, 1999). Since his official service personnel records do not indicate he received any medals, badges, wounds, or decorations specifically denoting combat against enemy forces (see VAOPGCPREC 12-99 (October 18, 1999)), credible evidence is needed to verify his alleged stressors. 38 C.F.R. § 3.304(f)(2); Cohen v. Brown, 10 Vet. App. 128, 147 (1997); See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). According to a May 2013 memorandum, the AMC sought to corroborate his stressor. To this end, it made efforts to obtain the needed information from the Joint Services Records Research Center (JSRRC) and the US Army Crime Records Center, but to no avail. The AMC determined that all efforts had been exhausted and that any further attempts would be futile. See 38 U.S.C.A. § 5103A(b)(3); 38 C.F.R. § 3.159(c)(2) and (e)(1). See also Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008); 38 C.F.R. § 3.159(c)(2) (providing that VA will end its efforts to obtain records from a Federal department or agency only if VA concludes the records sought do not exist or that agency advises VA the requested records do not exist or that the custodian does not have them). Ultimately, then, the Veteran's stressor was not corroborated. His alleged stressor has not been independently verified and, alternatively, it has not been established that he engaged in combat against enemy forces such that this objective verification is not required to support his PTSD diagnosis. See 38 C.F.R. § 3.304(f)(2) (formerly (f)(1)); Hayes v. Brown, 5 Vet. App. 60, 66 (1993). This determination was based on a review of his military personnel records, including his DD Form 214, which did not show he was awarded any decorations or commendations commonly associated with valor or heroism while engaged in combat with an enemy force. It was noted that he had received several awards, and although very commendable in their own right, they are not per se or prima facie indications that he was ever in a combat zone or engaged in combat against an enemy force. Also, none of his other service personnel records indicates he was ever sent to a combat zone, as he alleges. And the record does not contain "buddy" statements from other servicemen who might be able to corroborate the details of his alleged stressors. New regulations regarding PTSD found at 38 C.F.R. § 3.304(f)(3), however, which took effect as of July 13, 2010, so during the pendency of this appeal, state that if a stressor claimed by a Veteran is related to his "fear of hostile military or terrorist activity" and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See 75 Fed. Reg. 39,843 (July 13, 2010). But, significantly, this most recent regulation amendment has no impact on PTSD stressors claimed, as here, to have been experienced during combat, or while interned as a POW, or the result of personal or sexual assault since there already are special provisions, exceptions, etc., for these other type claims. See 38 C.F.R. § 3.304(f)(2), (f)(4), and (f)(5). His STRs also do not mention any complaints, treatment or diagnosis of a psychiatric disorder such as PTSD, or concerning a psychiatric disorder of any sort for that matter. Also keep in mind that VA did not adopt the PTSD nomenclature until 1980 or thereabouts, so not until after some of the putative traumatic events are said to have occurred during his service, but also recognizing that he had additional service for long after 1980. Following the Board's November 2012 remand, he was afforded a VA compensation examination in March 2013 to determine the current nature and etiology of any currently diagnosed psychiatric disability, to include PTSD. He reiterated his stressor as a combat medic, and based on that stressor, the VA examiner determined the Veteran met the criteria for a diagnosis of PTSD. The Axis I diagnosis was PTSD, and no other mental health disorders were identified. Additionally, based on the Veteran's report and the records in the claims file, the examiner determined that it is at least as likely as not that the PTSD is secondary to his service in the military. Despite this favorable medical opinion, however, there must be credible evidence of the in-service stressor underlying the diagnosis, and as mentioned there is not. Consequently, the preponderance of the evidence is against finding that the Veteran has PTSD based on a verified in-service stressor. As such, entitlement to service connection for PTSD is not warranted on a direct-incurrence basis. Nonetheless, the Board recognizes his statements to medical personnel that he is depressed because of his service-connected sleep apnea. So besides entitlement to direct service connection for this condition, the Board also considered entitlement to secondary service connection. See 38 C.F.R. § 3.310(a) and (b) and Allen v. Brown, 7 Vet. App. 439, 448 (1995) (permitting service connection on this secondary basis for disability that is proximately due to, the result of, or aggravated by service-connected disability). Notably in this regard, the March 2013 VA examiner conceded the Veteran's PTSD symptoms may have been aggravated by his sleep apnea, even if not caused by this service-connected disability. The examiner observed the Veteran was diagnosed with obstructive sleep apnea in 1995, and that he began treatment for PTSD in approximately 1997, which the examiner surmised suggested the PTSD symptoms may have been aggravated by the sleep apnea. He could not find any suggestion of PTSD preceding the sleep apnea to disassociate the PTSD from the sleep apnea. Therefore, in light of this favorable medical opinion concerning aggravation, the Board finds that service connection for PTSD is warranted on a secondary basis. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the Court (CAVC) has jurisdiction by virtue of an NOD satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof)). This includes the duty to address arguments a Veteran has specifically made as it relates to the adequacy of any given VA examination. The Board also has considered whether the Veteran has an acquired psychiatric disorder other than PTSD that also is related to his military service - either directly, presumptively or secondarily by way of a service-connected disability. In his March 2007 claim, the Veteran asserted that he has major depression, in pertinent part, secondary to his combat experiences in service. The private psychologist who diagnosed the Veteran with PTSD in March 2007 also diagnosed the Veteran with major depression secondary to his "PTSD trauma." Again, though, combat service has not been established and the Veteran's stressor has not been independently verified or said to involve one of the other pleading-and-proof exceptions that would not require this objective corroboration. Still, although the Board has determined herein that his PTSD is aggravated by his service-connected sleep apnea, his PTSD is not shown to be related to combat service. Thus, it necessarily follows that the March 2007 diagnosis of major depression cannot be secondary to the PTSD diagnosis that, itself, was based on an in-service combat stressor. Additionally, as noted, there is no suggestion of any psychiatric complaints or symptoms in service or even during the ensuing one-year presumptive period allowing for initial manifestation of psychoses to a minimum compensable degree of at least 10-percent disabling to alternatively presume it was incurred in service. According to 38 C.F.R. § 3.384, a "psychosis" includes the following specific disorders: brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified (NOS), schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. So major depression is not included. The most recent VA examiner in March 2013, however, specifically determined that the Veteran's depression is a symptom of his PTSD, so part and parcel of it, rather than a separate disorder in its own right. As noted, the only psychiatric disorder diagnosed during that March 2013 VA mental health examination was PTSD. Consequently, the Board concludes the Veteran does not have a psychiatric disorder other than PTSD that is related to his military service or a service-connected disability. To the extent he has associated depression, this may affect the eventual rating for his underlying PTSD. 38 C.F.R. § 4.126-4.130. Claims for Higher Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided, as this would violate VA's anti-pyramiding regulation - 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). While the Veteran is competent to offer evidence as to the visible symptoms or manifestations of a disease or disability, his belief as to its current severity under pertinent rating criteria or the nature of the service-connected pathology is not probative evidence. Layno v. Brown, 6 Vet. App. at 470 (1994); Grottveit v. Brown, 5 Vet. App. at 92-93 (1993). Sleep Apnea The RO rated the Veteran's sleep apnea as 50-percent disabling under DC 6847. Under DC 6847, a 50 percent rating contemplates sleep apnea requiring the use of a breathing assistance device such as a CPAP machine. The next higher and maximum rating of 100 percent is assigned for sleep apnea with chronic respiratory failure, or; requiring a tracheostomy. See 38 C.F.R. § 4.97, Diagnostic Code 6847 (2013). See also Johnson v. Brown, 7 Vet. App. 95 (1994) (holding only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). Cor Pulmonale is a combination of hypertrophy and dilatation of the right ventricle secondary to pulmonary hypertension, which is due to disease of the lung parenchyma or pulmonary vascular system. 62 Fed. Reg. 65,207, 65,210 (Dec. 11, 1997). In June 2007, the Veteran underwent a VA respiratory examination. A history of cough, night sweats, orthopnea, paroxysmal nocturnal dyspnea, shortness of breath was noted. He reported daytime hypersomnolence, snoring, and sleep disruption. He also reported that his sleep apnea was being treated by a CPAP machine. On examination, there were no signs of benign or malignant neoplasms. His heart sounds were normal. There were no signs of venous congestion. Chest x-rays taken in June 2007 revealed minimal chronic bronchitis and no chronic heart failure or infiltrates. Diagnosis was sleep apnea. It was noted that the sleep apnea had no significant effects on his occupation, or daily activities such as feeding, bathing, dressing, toileting, or grooming. It was noted to have severe effects on completing chores, shopping, exercising, sports, recreation, and traveling. The examiner stated further that the Veteran's sleep apnea would most likely interfere with the Veteran's physical and sedentary employment related to daytime hypersomnolence, fatigue, and decreased concentration. A private treatment note dated in June 2008 indicates a chest X-ray showed cardiomegaly and possible enlargement of the right pulmonary artery. A private physical examination in December 2008 assessed pulmonary obstructive disorders. Subsequent private treatment records reiterate this finding. Dr. P.'s October 2009 treatment record indicates that the veteran was encouraged to consider tracheostomy for definitive management of his sleep apnea. Dr. P.'s November 2009 treatment record indicates that the Veteran uncontrolled obstructive sleep apnea. It was noted that the Veteran was close to committing to a tracheostomy for definitive management of his severe obstructive sleep apnea. Dr. W.'s December 2009 letter also indicates the Veteran has chronic respiratory failure secondary to sleep apnea and would undergo a tracheotomy in January 2010. According to a January 2010 private treatment note, an electrocardiogram (ECG) showed evidence of premature ventricular contractions. A VA otolaryngology consultation in August 2011 noted the Veteran had a prior medical history of possible chronic obstructive pulmonary disease (COPD). He had been informed that tracheotomy and other surgical procedures may resultantly be in order. During a fee-basis examination later in August 2011, physical examination of his neck, chest and lungs were grossly normal. A diagnosis of sleep apnea was continued. The Veteran's subjective reports of daytime sleepiness were noted. Objectively, examination was normal with history and treatment consistent with obstructive sleep apnea. He underwent uvulopalatopharyngoplasty, tongue base reduction, and septal turbinoplasty in late 2011. A VA otolaryngology clinic note dated in January 2012 indicated a further surgical outcome would be tracheotomy, but the Veteran was not interested in having this additional procedure done. A sleep study in March 2012 confirmed obstructive sleep apnea. Pursuant to and following the Board's November 2012 remand, the Veteran was afforded a VA compensation examination to reassess his service-connected sleep apnea in May 2013. The May 2013 VA examination report reflects that the Veteran requires the use of a CPAP machine. The report indicates that he is not in need of continuous medication to control his sleep apnea. His sleep apnea was productive of persistent daytime hypersomnolence; there were no other findings, signs or symptoms attributable to his sleep apnea. The Veteran reported quitting his job as a driver because of his sleep apnea. When VA received the Veteran's increased-rating claim on March 2, 2007, a 50 percent rating was in effect for his sleep apnea based on evidence showing this condition required the use of a CPAP machine. The criteria for the next higher rating of 100 percent were not met until December 1, 2009, when his private physician, Dr. W., indicated the Veteran had chronic respiratory failure secondary to his sleep apnea. As indicated however, the Board remanded the claim in November 2012 partly to determine the current nature and severity of the Veteran's sleep apnea. And after examining the Veteran and reviewing the claims file, including Dr. W.'s December 2009 statement, the VA compensation examiner indicated the Veteran's sleep apnea is productive of persistent daytime hypersomnolence. However, when asked whether the Veteran exhibited any other pertinent physical findings, complications, conditions, signs and/or symptoms of sleep apnea, the VA examiner responded in the negative. The Board therefore concludes the Veteran's sleep apnea is no longer productive of chronic respiratory failure, but still requires the use of a CPAP machine. Although the possibility of a tracheostomy was still being entertained, the evidence does not show he actually underwent such procedure. Thus, since his most recent VA examination on May 20, 2013, his sleep apnea primarily has involved daytime hypersomnolence and still requires the use of a CPAP machine, consistent with the prior and lesser 50 percent rating under DC 6847. Therefore, the Board concludes that the criteria are met for a maximum disability rating of 100 percent for the Veteran's sleep apnea only during the intervening period from December 1, 2009, to May 19, 2013, so only up to the date of his most recent VA respiratory examination. Prior to and since, he at most instead has been entitled to the lesser 50 percent rating for this service-connected disability. The assignment of this 100 percent intervening rating represents a "staging" of the rating for this disability to compensate him for this variance in its severity. See Hart v. Mansfield, 21 Vet. App. 505 (2007). ED The ED claim, as mentioned, arises from the Veteran's disagreement with the initial rating assigned following the granting of service connection for this condition. In Fenderson, supra, the Court noted the distinction between a new claim for an increased evaluation of a service-connected disability and a case in which the Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service connected. In the Fenderson scenario, where the Veteran has expressed dissatisfaction with the assignment of an initial rating, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim - a practice known as "staged" rating. Fenderson, 12 Vet. App. 125 -126. The Court also since as mentioned has extended this practice even to claims that do not involve initial ratings, rather, also established ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In an April 2010 rating decision, the RO granted service connection for ED secondary to the service-connected hypertension pursuant to DC 7522 based on a letter from the Veteran's private physician indicating the ED is due to anti-hypertensive medication. However, recognizing the Veteran already is receiving SMC for loss of use of a creative organ, entitlement to a higher rating for the ED is based, in part, on whether he has penis deformity, and this usually has been interpreted to mean physical deformity, not just a non-erectile or non functioning penis in that sense. ED is not specifically listed in the Rating Schedule, hence, the use of a hyphenated diagnostic code (DC). In the assignment of diagnostic code numbers, hyphenated diagnostic codes may be used. Injuries generally will be represented by the number assigned to the residual condition on the basis of which the rating is determined. Diseases will be identified by the number assigned to the disease, itself, followed by a hyphen, with the residual condition listed last. So a hyphenated diagnostic code reflects a rating by analogy. See 38 C.F.R. §§ 4.20 and 4.27. The most closely aligned criteria for this disability are found in Diagnostic Code 7522, which provides that deformity of the penis with loss of erectile power is rated 20-percent disabling, also noting the adjudicator is to review for entitlement to SMC under 38 C.F.R. § 3.350 - which, as mentioned, the Veteran already is receiving. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. So resolution of this appeal ultimately turns on whether the Veteran has deformity of his penis in addition to ("with") the loss of erectile power on account of his ED. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (indicating that use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). Compare and contrast with Johnson v. Brown, 7 Vet. App. 95 (1994) (holding, instead, that only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). Pursuant to and following the November 2012 remand, the Veteran was afforded a VA compensation examination in May 2013 to reassess his ED. It was noted that he was unable to achieve an erection sufficient for penetration and ejaculation without medication. He did not have retrograde ejaculation or a history of chronic epididymitis, epididymo-orchitis or prostatitis. Examination of his penis and epididymis was normal. The size of his right testes was size 1/2 to 1/3 of normal. His prostate was not examined, as the examiner indicated that such an examination was not relevant to condition in question. The Veteran did not have a benign or malignant neoplasm or metastases related to the ED. There were no related surgical scars or any other pertinent physical findings, complications, conditions, signs, or symptoms. Applying the relevant evidence to the applicable rating criteria, the Board finds that an initial compensable rating for the Veteran's ED is not warranted. As indicated, he has service-connected ED, rated as noncompensably disabling, but also receives compensation for the loss of use of a creative organ in the form of SMC. A schedular compensable rating may be assigned if there is a deformity of the penis due to ED, and there is no medical indication of any penile deformity whatsoever. The May 2013 VA examiner described examination of the Veteran's penis as normal and the remaining evidence is devoid of any reference to a penile deformity, again, meaning in a physical sense. The VA examiner's observations would contradict any by the Veteran of having this specific type of physical defect, though perhaps it is visible even to the naked eye, and not just a penis that does not achieve erection or otherwise function as it should. Layno, 6 Vet. App.465, 469. The Board attaches greater probative weight to the clinical findings and observations of the VA compensation examiner concerning this. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Consequently, an initial compensable rating for the ED is unwarranted. The Board also has considered whether referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1). Here, the rating criteria for the Veteran's sleep apnea and ED reasonably describe his disability levels and symptomatology, and provide higher ratings for disability levels more severe than those shown by the evidence (save for the period when he is receiving a higher, and maximum possible, 100 percent rating for his obstructive sleep apnea). It is also noted that his current compensation via SMC for ED is, effectually, a form of special rating. Thus, his disability picture is contemplated by the Rating Schedule, and ratings under that schedule are therefore adequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not required. ORDER The claim of entitlement to service connection for PTSD (with associated depression), as secondary to the service-connected sleep apnea, is granted. From March 2, 2007, to November 30, 2009, and from May 20, 2013, onwards, entitlement to a rating higher than 50 percent for the sleep apnea is denied. But in the interim, from December 1, 2009, to May 19, 2013, entitlement to a higher 100 percent rating for the sleep apnea is granted, subject to the laws and regulations governing the payment of VA compensation. However, entitlement to an initial compensable rating for the ED is denied. REMAND Pursuant to and following the Board's November 2012 remand, the VA examiner who examined the Veteran in May 2013 in connection with the claims on appeal determined that his service-connected disabilities do not impact his ability to obtain and maintain substantial gainful sedentary or physical employment. At the time, the Veteran's service-connected disabilities were sleep apnea, sinusitis, hypertension, residuals of genioplasty advancement, and cystectomy of right thigh with residual scar. However, as the Board has additionally granted service connection for PTSD (with associated depression), and awarded a staged rating for his service-connected sleep apnea, additional comment is needed concerning the effect, if any, that all of his service-connected disabilities have on his employability - so including the additional disability that was not service connected when this was last considered. The Board also sees the Veteran received a favorable disability decision in December 2008 from the SSA. That SSA disability award was based on both service-connected and non service-connected disabilities - namely, sleep apnea, hypertension, PTSD, depression, GERD, and left hip and left leg pain due to left aortoilac stenosis at the mid left superficial femoral artery. The examiner who provides the addendum therefore should reconcile his/her opinion with the SSA disability decision as well. Accordingly, this derivative TDIU claim is again REMANDED for the following additional development and consideration: 1. If still available to comment, give the VA examiner that provided the May 2013 TDIU opinion opportunity to review again the Veteran's claims files, including a complete copy of this remand. If, for whatever reason, this examiner is no longer available or able to provide this additional comment (addendum opinion), then obtain this additional comment from someone else equally qualified. In this eventuality, it may be necessary to have the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed or, instead, this requested medical comment can be provided just with review of the claims files. The examiner is asked to provide supplemental comment concerning whether, without regard to the Veteran's age or the impact of any non service-connected disabilities, it is at least as likely as not that his service-connected disabilities (which now are sleep apnea, sinusitis, hypertension, residuals of genioplasty advancement, cystectomy of right thigh with residual scar, and PTSD (with depression)), either alone or in the aggregate render him unable to secure or follow a substantially gainful occupation when considering his prior work experience, training, and level of education, etc. Reconcile this opinion with the favorable December 2008 SSA disability decision, and the Veteran's lay statements that he cannot stay awake during the day and has difficulty driving, primarily because of the effects of his sleep apnea. Again, though, there now also must be consideration of his PTSD and associated depression as well. The examiner must be sure to distinguish substantially gainful employment from employment that, instead, would only be considered marginal. All findings, along with a fully articulated medical rationale for any opinion expressed should be set forth in the addendum report. 2. Then readjudicate this derivative TDIU claim. If this claim continues to be denied, send the Veteran and his representative another SSOC and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration of this remaining TDIU claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs