Citation Nr: 1334959 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 02-21 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a headache disability. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a rash of the bilateral arms. 3. Entitlement to service connection for hypertension. 4. Entitlement to a compensable disability rating for erectile dysfunction (ED). 5. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance/housebound status. 6. Entitlement to SMC based on the loss of use of a creative organ prior to July 6, 2001. 7. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) prior to May 22, 2002. 8. Entitlement to service connection for a headache disability. 9. Entitlement to service connection for a rash of the bilateral arms. 10. Entitlement to service connection for colon polyps. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from December 1964 to May 1969, including service in the Republic of Vietnam (Vietnam) during the Vietnam era (defined as January 9, 1962, to May 7, 1975). This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of Regional Offices (RO) of the Department of Veterans Affairs (VA). A June 2002 rating decision declined to reopen the Veteran's claim of entitlement to service connection for hypertension. A May 2006 rating decision granted a TDIU effective September 6, 2005, granted service connection for ED with a noncompensable disability rating effective July 6, 2001, and granted SMC based on loss of use of a creative organ effective September 6, 2005. A July 2006 rating decision denied service connection for a rash of the bilateral arms and headaches. A July 2007 Board decision reopened the Veteran's claim of entitlement to service connection for hypertension. A December 2008 rating decision denied service connection for colon polyps and SMC based on aid and attendance/housebound status. Four of these matters [namely: a) whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a headache disability; b) entitlement to a compensable disability rating for ED; c) entitlement to a TDIU prior to September 6, 2005, and; d) entitlement to SMC based on the loss of use of a creative organ prior to July 6, 2001] were previously before the Board in July 2007, when the Board remanded the case for additional development of the evidence of record. As an initial matter, the Board notes that when its remand orders are not complied with, it errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As will be discussed in further detail below, the Board finds that there has been effective compliance with the Board's remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance.) In July 2013 and August 2013, the Veteran submitted statements to the Board without a waiver of review of this evidence in the first instance by the agency of original jurisdiction (AOJ). With the exception of an August 2013 statement from the Veteran's physician concerning the Veteran's claim of entitlement to service connection for hypertension, the Board finds this newly-submitted evidence to be wholly cumulative of the existing evidence of record. This decision grants the Veteran's claim for service connection for hypertension. Thus, the Board finds that a remand for AOJ review of this evidence in the first instance is unnecessary. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of service connection for headaches, a rash of the bilateral arms, and colon polyps are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. An unappealed November 1996 rating decision denied service connection for headaches. 2. The evidence received since the November 1996 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for headaches. 3. An unappealed November 1996 rating decision denied service connection for a skin disorder. 4. The evidence received since the November 1996 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a rash of the bilateral arms. 5. The evidence of record is at least in equipoise as to whether a relationship exists between the Veteran's hypertension and his service-connected posttraumatic stress disorder (PTSD). 6. The evidence of record does not demonstrate that the Veteran's ED is manifested by penile deformity. 7. The Veteran is able to perform the basic functions of self care and is not so helpless due to his service-connected disabilities as to be in need of the regular aid and attendance of another individual. 8. The Veteran is not substantially confined to his house due to service-connected disabilities, nor does he have a single service-connected disability ratable at 100 percent along with other unrelated disabilities, which combine to at least 60 percent. 9. By rating decision dated May 2006, the RO granted SMC based on loss of use of a creative organ with an effective date of July 6, 2001, which is the date of receipt of the Veteran's claim for service connection for ED. 10. Prior to July 6, 2001, the record contains no evidence that may be reasonably construed as a pending claim for service connection for SMC based on loss of use of a creative organ. 11. Prior to May 22, 2002, the evidence does not establish that the Veteran was unable to secure and follow substantially gainful employment due to service connected disabilities. CONCLUSIONS OF LAW 1. The November 1996 rating decision denying the Veteran's claim of entitlement to service connection for headaches is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1996). 2. New and material evidence has been received sufficient to reopen the claim of service connection for headaches. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2013). 3. The November 1996 rating decision denying the Veteran's claim of entitlement to service connection for a skin disorder is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1996). 4. New and material evidence has been received sufficient to reopen the claim of service connection for a rash of the bilateral arms. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2013). 5. Service connection for hypertension is warranted. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.310 (2013). 6. The criteria for a compensable disability rating for ED have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.115b, Diagnostic Code 7522 (2013). 7. The criteria for entitlement to SMC based on the need for regular aid and attendance or by reason of being housebound are not met. 38 U.S.C.A. §§ 1521, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.350, 3.352(a) (2013). 8. The criteria for an effective date earlier than July 6, 2001, for the award of SMC based on the loss of use of a creative organ have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.114, 3.155, 3.159, 3.400, 3.816 (2013). 9. The criteria for an effective date prior to May 22, 2002, for the award of a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156(b), 3.157, 3.340, 3.400, 4.15, 4.16, 20.200, 20.201, 20.202, 20.302, 20.1100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist The Veteran's petition to reopen claims of entitlement to service connection for a headache disability and a rash of the bilateral arms has been granted, as discussed below. Similarly, the Veteran's claim of service connection for hypertension has been granted. As such, the Board finds that any error relating to notice or assistance with respect to these claims is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013); Kent v. Nicholson, 20 Vet. App. 1 (2006); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board has otherwise given consideration to the Veterans Claims Assistance Act of 2000, which includes an enhanced duty on the part of VA to notify a veteran as to the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). The VCAA also redefines the obligations of VA with respect to its duty to assist veterans in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). Upon receipt of a substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence that (1) is necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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 v. Nicholson, 19 Vet. App. 473 (2006). The Board observes, however, that the issues of a higher disability rating and earlier effective date are "downstream" issues. Once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated. See Sutton v. Nicholson, 20 Vet. App. 419 (2006) (citing Dingess). Given that the issues on appeal relate to the assignment of a higher initial rating for a service-connected condition and an earlier effective date, the Board concludes that VCAA notice requirements have been satisfied with respect to the issues on appeal. Furthermore, the Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured, which includes VA treatment records, VA examinations and private health records. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). More specifically, a VA examination must be conducted when the evidence of record does not reflect the current state of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In the instant case, the Veteran was provided with a VA examination addressing his ED in December 2005. The examination report indicates that the examiner reviewed the Veteran's claim file and past medical history, recorded his current complaints, conducted an appropriate evaluation, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board, therefore, concludes that this examination report is adequate for the purpose of rendering a decision in the instant appeal. 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. The Board acknowledges that the Veteran's last examination of his psychiatric and orthopedic disabilities is now relatively old. The mere passage of time since that examination is not reason enough, alone, to require reexamination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); VAOPGCPREC 11-95 (April 7, 1995). There is no objective evidence indicating that there has been a change in the Veteran's penis causing deformity since the time of the December 2005. He does not contend the contrary. The Veteran also testified before an Acting Veterans Law Judge (AVLJ) in August 2003. In October 2006, the Veteran was notified that the AVLJ who took testimony at the August 2003 hearing was no longer employed by the Board. The Veteran elected to participate in an additional hearing, and he testified before the undersigned in July 2013. Transcripts of both hearings have been associated with the record. The Board observes that all due process concerns have been satisfied. 38 C.F.R. § 3.103 (2013). Accordingly, the Board will proceed to a decision. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2013). A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review the former disposition. 38 U.S.C.A. § 5108 (West 2002); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2013); Smith v. West, 12 Vet. App. 312 (1999) (if the evidence is new but not material, the inquiry ends and the claim cannot be reopened.) To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of determining whether to reopen a claim, the credibility of newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the Veteran in developing the facts necessary for his claim has been satisfied. Elkins v. West, 12 Vet. App. 209 (1999); 38 U.S.C.A. § 5103A (West 2002). Regardless of what the RO has decided, the Board must address the question of whether new and material evidence has been received to reopen the claim because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board must also note that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran's claims of entitlement to service connection for headaches and a skin condition were last finally denied in a November 1996 rating decision. At that time, the RO declined to reopen the claims because it found that the Veteran had not submitted any complaints or chronic pathology associated with headaches, nor had the Veteran presented evidence that he suffered from a skin rash. The Veteran did not timely disagree with the decision, and the decision became final. The Board must determine if new and material evidence has been submitted since the time of the November 1996 final decision. The evidence added to the record includes, among other records, medical records demonstrating treatment for a pruritic rash of the skins and headaches, and an August 2013 statement from the Veteran's physician suggesting that the Veteran's headaches are related to his service-connected PTSD. That evidence is new because it has not previously been submitted to VA. Regarding the materiality of the newly submitted evidence, the Veteran's previous claims for service connection were denied because the RO found no evidence of complaints or chronic pathology associated with headaches or a skin rash. The new evidence, which reflects treatment for headaches and skin rash, and a possible relationship between the Veteran's service-connected PTSD and his headaches, relates to an unestablished fact necessary to substantiate the claim. The credibility of the newly submitted evidence is presumed in determining whether or not to reopen a claim. Justus v. Principi, 3 Vet. App. 510 (1992). Thus, the new evidence raises a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156(a) (2013). Thus, this evidence is new and material and meets the "low" threshold required by Shade in order to reopen the claims. As new and material evidence has been received, the claims for service connection for headaches and a rash of the bilateral arms are reopened. Service Connection for Hypertension Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2012); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service connected condition by a service connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Regarding the first Wallin element, evidence of a current disability, the Veteran has been diagnosed with hypertension, and the medical evidence of record contains evidence of treatment for this condition. The first Wallin element, evidence of a current disability, is therefore met. With respect to the second Wallin element, evidence of a service-connected disability, the Veteran is service-connected for PTSD with a 100 percent disability rating. Accordingly, the second Wallin element, evidence of a service-connected disability, is met. Regarding the third Wallin element, medical evidence of nexus, in July 2013, a VA examiner reviewed the Veteran's claims file and opined that the Veteran's hypertension was less likely than not caused by his service-connected PTSD. As a rationale for this opinion, the examiner noted that the Veteran had signs and symptoms of untreated obstructive sleep apnea (OSA). The examiner noted that untreated OSA can present as a mood disorder with signs and symptoms of hypertension. The examiner also noted that the Veteran's history of alcoholism and drug abuse could cause intermittent hypertension. The examiner noted that medical literature did not list PTSD as a secondary cause of hypertension. In August 2013, the Veteran's treating physician, after reviewing the July 2013 opinion, indicated that the Veteran suffered from severe PTSD. The physician acknowledged that OSA had been established as one of the causes of hypertension. The physician noted, however, that it was equally plausible and "definitely more likely than not" that PTSD is the cause of the Veteran's hypertension. The physician noted that the Veteran's PTSD manifests itself with nightmares, sleep deprivation, and intense anxiety. The physician indicated that patients with PTSD may have hypertension and erratic blood pressure, sometimes leading to stroke. Upon review of these nexus opinions, the Board finds that the August 2013 positive opinion is at least as probative as the July 2013 opinion. Both opinions considered alternative theories of causation, and both opinions demonstrated a familiarity with the specific facts in the instant case. With one probative opinion of record suggesting that the Veteran's hypertension is related to his PTSD and one probative opinion suggesting that there is no such relationship, the Board finds the evidence of record is in relative equipoise. Affording the Veteran with the benefit of the doubt, the Board finds that the third Wallin element, a nexus between the Veteran's service-connected PTSD and his hypertension, is satisfied. The Board concludes that service connection for hypertension is warranted. The Veteran's claim for service connection is granted, subject to the controlling laws and regulations that govern awards of VA compensation. 38 U.S.C.A § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating The Veteran essentially contends that his ED and resulting sexual difficulties warrant a compensable rating. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2013). When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2013). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, 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). Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2013); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Pyramiding-the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes-is to be avoided when rating a veteran's service-connected disabilities. See 38 C.F.R. § 4.14 (2013). ED is not explicitly listed in the rating schedule. Instead, Diagnostic Code 7522 is most closely analogous to ED, and this Diagnostic Code provides for a single 20 percent rating for deformity of the penis with loss of erectile power. In other words, to obtain a compensable rating under Diagnostic Code 7522, deformity of the penis with loss of erectile power must be demonstrated. Melson v. Derwinski, 1 Vet. App. 334 (1991) (noting that the use of the conjunctive "and" in a statutory provision means that that all of the conditions listed in the provision must be met.) When the rating 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 (2013). Additionally, the adjudicator is to review for entitlement to SMC under 38 C.F.R. § 3.350. 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2013). The Board notes that the Veteran is in receipt of SMC due to loss of use of a creative organ specifically to compensate him for his ED. Thus, the Board will evaluate whether the medical evidence of record demonstrates that the Veteran is entitled to additional compensation as a result of a deformity of the penis. In December 2005, a VA examiner indicated that the Veteran had not undergone any surgical procedures that would have resulted in ED. Furthermore, the Veteran had no physical problems that would explain his ED. Physical examination revealed an uncircumcised penis with a patent meatus and no urethral discharge. The Veteran had bilaterally descended testicles, no masses or hernia, and a small prostate gland that was smooth, symmetric, and without nodules. In December 2006, the Veteran complained of penile pain and swelling. Examination revealed that the distal foreskin was mildly inflamed and swollen in one area with no discharge evident. In a February 2007 VA treatment record, a VA clinician noted that the Veteran's penis had a healing fissure visible at the proximal edge of the foreskin on the dorsal shaft, 3mm in length, with no oozing or bleeding visible. The clinician noted that the penile lesion was likely related to trauma associated with sexual contact. Upon review of the medical evidence of record, the Board finds that there is no suggestion that the Veteran has ever suffered from a deformity of the penis. To the extent that the Veteran contends that his ED is more severe than the current noncompensable evaluation, the Board observes that the Veteran is competent to report the readily-observable symptoms associated with ED. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994) (stating that the veteran as a lay person is competent to report information of which he has personal knowledge, that is, information that he can gather through his senses.) Despite the competence of the Veteran's observations, a higher schedular rating for ED requires a deformity of the penis, which the Veteran has not been shown to have, nor has he alleged. In short, the Board concludes that the preponderance of the evidence is against granting a compensable evaluation for the Veteran's service-connected ED. The Board further finds that there have been no distinct periods of time during which the Veteran's disability was compensable. He is accordingly not entitled to receive a "staged" rating. In addition to this schedular analysis, the Board has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors that render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In Thun v. Peake, the United States Court of Appeals for Veterans Claims (Court) set forth a three-step inquiry to determine a veteran's entitlement to an extra-schedular rating. See 22 Vet. App. 111 (2008). First, 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 to be inadequate, the Board must determine whether the veteran's 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 extra-schedular rating. In this case, it is not necessary to go any further than the first step of the Thun analysis. The rating criteria are not inadequate, and it does not appear that the Veteran has an "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment. In other words, he does not have any symptoms from his service-connected ED that are unusual or are different from those contemplated by the schedular criteria. The available schedular evaluations are adequate. Referral for extra-schedular consideration is not warranted. Further inquiry into extra-schedular consideration is moot. See Thun, supra. SMC Based on the Need for Regular Aid and Attendance or Being Housebound SMC is payable if, as the result of service-connected disability, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.350(b) (2013). VA considers the following factors in order to determine whether a veteran is in need of regular aid and attendance of another person: the inability of the veteran to dress himself or to keep himself ordinarily clean and presentable; the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; the inability to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; the inability to attend to the wants of nature; or incapacity, physical or mental, that requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a) (2013). A veteran need not demonstrate all of these conditions in order to obtain SMC based on aid and attendance. Instead, VA considers the particular personal functions that the Veteran is unable to perform in connection with his condition as a whole. Rather than meeting all of the above criteria, the veteran need only demonstrate that he is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a) (2013); Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that the evidence of record must demonstrate at least one factor for a grant of SMC based on need for aid and attendance). In addition, a "bedridden" veteran also warrants the regular aid and attendance of another person. 38 C.F.R. § 3.352(a) (2013). The term "bedridden" means the condition that, through its essential character, actually requires that the veteran remain in bed. The fact that the veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure does not suffice. 38 C.F.R. § 3.352(a) (2013). SMC is also payable when the Veteran has a single service-connected disability rated as 100 percent disabling, without resort to individual unemployability, and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a result of his service-connected disabilities to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C.A. § 1114(s) (West 2002); 38 C.F.R. § 3.350(i) (2013). Turning to the facts in the instant case, the Veteran is service-connected for two conditions: PTSD, rated at 100 percent disabling, and ED, rated as noncompensably disabling. The Veteran is additionally in receipt of a TDIU and SMC based on the loss of use of a creative organ. The Veteran has argued that he is entitled to SMC based on aid and attendance or housebound status for the months of January 2006 and February 2006 as a result of injuries that he incurred as a result of a physical altercation with his son in December 2005. In January 2009, the Veteran stated that he was entitled to such benefits from January 7, 2006, to March 22, 2006. Turning to the evidence of record in the instant case, a January 2006 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance indicates that the Veteran was hospitalized from January 10, 2006, to January 14, 2006. The Veteran was placed on an IV antibiotic for three or more weeks and required changes of the dressings on the left elbow. The Veteran had limited movement of the left arm, and the Veteran was rendered temporarily totally disabled for a period of 6 weeks. The Veteran was able to walk without the assistance of another person, and he was able to leave his house or immediate premises every day. No aids were required for locomotion, and the Veteran was diagnosed with a left elbow infection. A separate January 2006 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance indicates that the Veteran was assaulted in December 2005. The Veteran was acutely ill with an infected, swollen injury with a severe rash of the left arm around the elbow. The examination indicated that the Veteran would be hospitalized for two to three days after his surgical and medical care. The Veteran could not drive. The Veteran largely stayed at home, but he was able to attend support group meetings five days weekly. The Veteran was diagnosed with an antibiotic-resistant wound of the left elbow. A later January 2006 VA treatment record indicated that the Veteran had experienced a severe assault by his "drug-addicted son" in December 2005, resulting in an open wound on his left elbow. This wound required treatment for two additional weeks with IV antibiotics and pain medications. The Veteran was cared for at home by home health care. The Veteran additionally underwent a surgical excision of a left knee nodule in February 2006. A May 2013 note indicated that a copy of the application for home health care had been lost, and the a nurse was required because the Veteran could not clean and dress his wounds himself. The Veteran underwent surgery on his right elbow and left knee. A nurse had to administer IV antibiotics to the Veteran twice a day for six weeks. Turning to an application of the law to the facts in the instant case, the Board reiterates that SMC is payable if, as the result of service-connected disability, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person. In the instant case, the evidence demonstrates unambiguously that the Veteran's medical treatment in January 2006 and February 2006 occurred as a result of a physical attack by his son, not as a result of his service-connected disabilities. With regard to the Veteran's housebound status, while the Board observes that the Veteran is in receipt of a 100 percent disability rating for his PTSD, he does not have other service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems. Furthermore, the evidence does not suggest that the Veteran has at any time been permanently housebound by reason of service-connected disability. Instead, the Veteran argued that he was housebound while recuperating from injuries incurred as a result of a family assault. Accordingly, the Board concludes that the Veteran is not entitled to SMC based on the need for aid and attendance or housebound status. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364-65 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Earlier Effective Date for SMC Based on Loss of Use of a Creative Organ The Veteran contends that a date earlier than July 6, 2001, should be established for the grant of SMC based on loss of use of a creative organ. Generally, the effective date of an award of disability compensation is the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the effective date is the date of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b) (West 2002); 38 C.F.R. § 3.400(b)(2) (2013). The word "claim" includes 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) (2013); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a veteran may be considered to be an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a) (2013). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In this regard, VA may not pay a benefit before a claim is made. 38 U.S.C.A. § 5101 (West 2002); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998) (stating that "[38 U.S.C.A. §] 5101 is a clause of general applicability and mandates that a claim must be filed in order for any type of benefits to . . . be paid under the laws administered by the Secretary.") The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Lalonde v. West, 12 Vet. App. 377, 382 (1999); Brannon v. West, 12 Vet. App. 32, 35 (1998). More specifically, a medical examination report is only considered an informal claim for an increase in disability benefits if service connection has already been established for the disability. MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); see also 38 C.F.R. § 3.157(b)(1) (medical records can serve as informal claim "when such reports relate to examination or treatment of a disability for which service-connection has previously been established"). Likewise, the mere presence of a disability does not establish intent on the part of the Veteran to seek service connection for that condition. Crawford v. Brown, 5 Vet. App. 33, 35 (1995); KL v. Brown, 5 Vet. App. 205, 208 (1993). Turning to the facts in the instant case, the Veteran submitted a claim for an increased rating for his service-connected PTSD on July 6, 2001. In August 2001, the Veteran submitted a separate claim for ED as a symptom of PTSD. A May 2006 rating decision granted service connection for erectile dysfunction, and it granted a noncompensable evaluation effective July 6, 2001, or the date when the Veteran placed his claim for an increased rating for PTSD. The May 2006 rating decision additionally granted an SMC based on loss of use of a creative organ as of that date. Applying the law to the facts of this case, the Board finds that there is no basis for assignment of an effective date before July 6, 2001. Before that date, the record is completely negative for any communication or action indicating an intent to apply for service connection for ED or SMC based on a loss of use of a creative organ. The law is clear that no benefit may be paid before a claim is made. 38 U.S.C.A. § 5101 (West 2002). Therefore, the effective date of the award of SMC may be no earlier than the date of receipt of the claim for ED. Accordingly, since there is no evidence that reflects an intent to make a claim for service connection for ED or SMC based on a loss of use of a creative organ prior to July 6, 2001, the claim is denied. Entitlement to a TDIU Prior to May 22, 2002 As an initial matter, the Board notes that the award of a 100 percent schedular rating moots the issue of entitlement to a TDIU rating for the period when the 100 percent rating is in effect. Herlehy v. Principi, 15 Vet. App. 33 (2001). The Board also does not find a basis to conclude otherwise based on the more recent case of Bradley v. Peake, 22 Vet. App. 280 (2008). In July 2007, the Board remanded the claim of entitlement to an effective date earlier than September 6, 2005, for the award of a TDIU. An August 2007 rating decision then increased the disability evaluation of the Veteran's PTSD to 100 percent effective May 22, 2002. This rating decision thus made moot the issue of entitlement to a TDIU for the period from May 22, 2002 to September 6, 2005, because the Veteran's disability rating was 100 percent during this time. Thus, the issue remaining on appeal is whether the Veteran is entitled to a TDIU with an effective date earlier than May 22, 2002. A total rating for compensation purposes based on individual unemployability will be granted when the evidence shows that a veteran is precluded, by reason of service connected disability, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there are two or more service-connected disabilities, there must be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2013). When those percentage requirements are not met, entitlement to TDIU may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disability, with consideration is given to the Veteran's background including his employment and educational history. 38 C.F.R. § 4.16(b) (2013). The Board does not have the authority to assign TDIU pursuant to 38 C.F.R. § 4.16(b) in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). In general, the effective date of an award of compensation and rating based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2013). When evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation, the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from that date. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2013); Harper v. Brown, 10 Vet. App. 125 (1997). Furthermore, a TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. Hurd v. West, 13 Vet. App. 449 (2000). The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application is received within one year from such date. Otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(2) (West 2002); 38 C.F.R. § 3.400(o) (2013); Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98 (1998), 63 Fed. Reg. 56704 (1998). Turning to the facts in the instant case, the Veteran has not specified what he believes the appropriate date for a TDIU to be. The Board treats July 6, 2001-the date when the Veteran filed a claim for an increased rating for PTSD-as the date of claim for a TDIU. From July 6, 2001, to May 22, 2002, the Veteran is in receipt of a 50 percent rating for PTSD and a noncompensable rating for ED. The Veteran's service-connected disabilities thus did not meet the percentage rating standards for the award of a schedular TDIU during the relevant time. 38 C.F.R. § 4.16(a) (2013). Having reviewed the record, the Board finds no evidence suggesting that the Veteran's case is outside the norm, requiring extraschedular consideration. In February 2002, Dr. O.M. stated that the Veteran was totally incapacitated from February 7, 2002, to February 11, 2002, as a result of PTSD. In March 2002, Dr. O.M. stated that the Veteran was totally incapacitated from March 26, 2002, to April 3, 2002, as a result of his PTSD and hypertension. The Veteran underwent a VA examination in April 2002, at which time the Veteran was employed full-time as a postal office security guard from Monday through Friday. A June 2004 treatment note indicates that the Veteran had not worked since May 2002, at which time he was released from his work as a security guard. Upon review of this evidence, the Board observes that the Veteran was gainfully employed throughout the relevant period of time from July 2001 to May 2002. While the Board does not doubt that the Veteran's service-connected disabilities had some effect on his employability, as evidenced by his 50 percent combined disability rating during this time, the weight of the evidence does not support a finding that the Veteran's service-connected disabilities were of such severity so as to preclude his participation in any form of substantially gainful employment. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran was unable to obtain and sustain gainful employment as a result of service connected disabilities prior to May 22, 2002. Therefore, entitlement to an effective date earlier than May 22, 2002, for the award of a TDIU is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim for service connection for headaches is reopened, and the appeal is allowed to that extent only. The claim for service connection for a rash of the bilateral arms is reopened, and the appeal is allowed to that extent only. Service connection for hypertension is granted. A compensable disability rating for ED is denied. SMC based on the loss of use of a creative organ prior to July 6, 2001, is denied. A TDIU prior to May 22, 2002, is denied. REMAND Though the Board regrets the additional delay, it finds that additional development is warranted with respect to the reopened claims for service connection for headaches and a skin rash of the bilateral arms, and the claim for service connection for colon polyp. VA must provide an examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the instant case, the evidence of record indicates that the Veteran has been diagnosed with headaches, multiple papular lesions on his forearms, and colon polyps. The Veteran contends that his headaches are related to concussive forces that he experienced in Vietnam. Furthermore, the Veteran served in Vietnam during the Vietnam era, and thus he is presumed to have been exposed to an herbicide agent during such service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). The Veteran has not been provided with a VA examination to determine the nature and etiology of his headaches, skin rash of the bilateral arms, and colon polyps, and such an examination should be provided to the Veteran on remand. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Contact the Veteran and provide him with the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on the Veteran's response, attempt to procure copies of all records that have not been previously obtained from identified treatment sources. Ensure that all records of which RO has notice have been obtained and either associated with the claims file. 2. Then, schedule the Veteran for a VA examination with an examiner or examiners of appropriate expertise to determine the nature and etiology of the Veteran's colon polyps, headaches, and skin rash. All indicated tests and studies must be performed. The claims folder must be reviewed by the examiner in conjunction with the examination. Following a review of the Veteran's claims file, physical examination of the Veteran, and consideration of the Veteran's statements, the examiner must opine as to whether it is it at least as likely as not (that is, a 50 percent probability or greater) that the Veteran's colon polyps, skin rash, and headaches had their onset in service or are otherwise related to service. The examiner is reminded that the Veteran served in Vietnam during the Vietnam era, and thus it should be assumed that the Veteran was exposed in-service to herbicides. The examiner should also assume that the Veteran is competent to discuss his experiences in service, including exposure to acoustical trauma. 3. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and, if not, implement corrective procedures. 4. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claims. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs