Citation Nr: 1614162 Decision Date: 04/07/16 Archive Date: 04/25/16 DOCKET NO. 14-25 123A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for gout of the right foot. 2. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and major depressive disorder. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for a right eye disease. 5. Entitlement to service connection for chronic pain of the joints. 6. Entitlement to service connection for migraine headaches. 7. Entitlement to service connection for sleep apnea. 8. Evaluation of erectile dysfunction secondary to circumcision, currently rated as 20 percent disabling. 9. Evaluation of residuals of circumcision, to include voiding dysfunction, currently rated as 40 percent disabling. 10. Entitlement to a total disability rating based on individual unemployability as due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD E.I. Velez, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to August 1967. These matters come on appeal before the Board of Veterans' Appeals from various rating decisions by the Department of Veterans Affairs, Regional Office, located in Winston-Salem, North Carolina. The Board notes that the RO only adjudicated whether the Veteran was seeking service connection for PTSD. In Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000) the Federal Circuit clarified how the Board should analyze claims for PTSD and other acquired psychiatric disorders. As emphasized in Clemmons, though a veteran may only seek service connection for PTSD, the veteran's claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Id. The record shows that the Veteran has been diagnosed with depressive disorder and major depressive disorder. Therefore, the Board will address whether service connection is warranted for an acquired psychiatric disorder, however diagnosed. However, the Board will keep the issues of PTSD and another acquired psychiatric disorder other than PTSD separately as they are based on distinct theories of entitlement. The issues have been recharacterized accordingly as noted on the title page. The Board notes that in a December 2014 rating decision, the RO denied service connection for sleep apnea and headaches, and granted service connection for erectile dysfunction with a noncomepnsable rating, and residuals of circumcision with voiding dysfunction with a 40 percent disability rating. The Veteran disagreed with the decision. In a September 2015 rating decision, the RO increased the disability rating of erectile dysfunction to 20 percent disabling. Thereafter, a statement of the case was issued in July 2015 and the Veteran filed a formal appeal, VA Form 9, in September 2015. Most recently, the Veteran submitted additional evidence as to the issue of service connection for headaches in January 2016 with a waiver of RO consideration. In March 2016, the RO certified the appeals as to these issues to the Board. Entitlement to a TDIU has been raised by the evidence of record. The Board has recharacterized the issues on appeal to include entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The issues of service connection for gout of the right foot, PTSD, chronic pain of the joints, TDIU and sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The competent evidence of record does not demonstrate that the Veteran has any current diagnosed eye disorder. 2. The Veteran's refractive error is not disability for VA purposes. 3. Depressive disorder is aggravated by the service connected erectile dysfunction and residuals of circumcision with voiding dysfunction. 4. Migraine headaches are caused by the service connected depressive disorder. 5. The Veteran is in receipt of maximum allowable rating under the schedular criteria for erectile dysfunction. 6. The Veteran's residuals of circumcision with voiding dysfunction are not manifested by the required use of an appliance, the use of absorbent materials which must be changed more than four times per day, nor any type of renal dysfunction. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right eye disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A (West 2014) 38 C.F.R. §§ 3.303, 3.303(d), 3.304, 3.310 (2015). 2. The criteria for entitlement to service connection for a depressive disorder as secondary to service-connected erectile dysfunction and residuals of circumcision with voiding dysfunction have been satisfied. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). 3. The criteria for entitlement to service connection for migraine headaches as secondary to service-connected depressive disorder have been satisfied. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). 4. The criteria for an initial rating in excess of 20 percent for erectile dysfunction are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.115b, Diagnostic Code 7599-7522 (2015). 5. The criteria for an initial rating in excess of 40 percent for residuals of circumcision with voiding dysfunction are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.115b, Diagnostic Code 7518 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. At the outset, the Board notes that since the Veteran's claims for service connection for depressive disorder and migraine headaches are being granted, any deficiencies with regard to VCAA are harmless and nonprejudicial as to those issues, and VCAA analysis is not required. As to the remaining issues, in the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, an August 2011 letter, sent prior to initial unfavorable AOJ decision issued as to the issue of the right eye disability in May 2013, advised the Veteran of the evidence and information necessary to substantiate his service connection and increased rating claims as well as his and VA's respective responsibilities in obtaining such evidence and information; and the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. With regards to the issues of the initial disability rating for erectile dysfunction and residuals of circumcision, a notice letter is not of record. However, there is a May 2014, signed acknowledgement by the Veteran of the receipt of a VCAA notice letter issues in April 2014. In the acknowledgment form, the Veteran checked the box that he was enclosing all of the information and evidence he wanted to be considered in his claim. While the actual notice letter is not of record, there is an acknowledgement of the receipt of the letter and the Board will assume it was received by the Veteran. Moreover, the Board notes that the Veteran has been represented by a private attorney throughout his appeal who has actively made arguments and presented evidence on his behalf showing that he has actual knowledge of the information necessary to establish service connection and an initial disability evaluation. Finally, the Board notes that the current appeal as to the erectile dysfunction and residuals of circumcision, arise out of a disagreement with the initial disability rating following the grant of service connection. When, as here, the claim arose in the context of the Veteran trying to establish his underlying entitlement to service connection, and this since has been granted and he has appealed a "downstream" issue such as the initial rating assigned for his disability, the underlying claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the initial intended purpose of the notice has been served. See Goodwin v. Peake, 22 Vet. App. 128 (2008). As such, given the above, the Board finds that the Veteran has been provide all required notice. Relevant to the duty to assist, the Veteran's available service treatment records, as well as all post-service treatment records, relevant to the issues being decided herein, identified by the Veteran, including VA outpatient treatment records and private treatment records, have been obtained and considered. The Veteran has not identified any additional, outstanding records that he wishes to be considered in his appeal. The Board does note, however, as will be further explained in the remand section of this decision, that there appears to be outstanding private treatment records which need to be obtained. Indeed, Dr. Jay Sauls records have been identified by the Veteran but have not been associated with the claim file. However, in the Release of Information form of April 2011, the Veteran noted these records pertained to the treatment of PTSD and sleep apnea. As such, the records are not relevant to the issues being decided herein and it is not prejudicial to the Veteran to proceed with the issues of service connection for a right eye disability, and the initial disability rating of erectile dysfunction and residuals of a circumcision. Additionally, the Veteran was provided with VA examinations in August 2011 and February 2012. There is no allegation or indication that the examinations or medical opinions rendered in this appeal were inadequate. These examination contain sufficient findings to rate the Veteran's service connected erectile dysfunction and voiding dysfunction under the applicable rating criteria as well as sufficient opinions regarding the etiology of the Veteran's claimed eye disability, depressive disorder, and headaches. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. Claims for Service Connection A Veteran is entitled to VA disability compensation, that is, service connection, for a disability resulting from personal injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110 (2015). Generally, to establish entitlement to VA disability compensation, that is, service connection, a Veteran must show: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible. Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Competency is distinguished from the credibility and weight of admissible evidence, which are factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. If the evidence is not credible, the evidence has no probative value. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). The law provides that refractive errors of the eyes are congenital or developmental defects and not disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9. Thus, VA regulations specifically prohibit service connection for refractive errors of the eyes unless such defect was the subject of aggravation by a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental, or familial origin, unless the defect was subject to a superimposed disease or injury). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. A. Right Eye Disability The Veteran seeks entitlement to service connection for an eye disability which he argues he incurred in service. The Board has reviewed the evidence of records and notes that the claim must be denied on the basis that there is no showing of a disability of the right eye at any time during the appeal period. Indeed, VA outpatient treatment records are silent for any complaints, symptoms of or treatment for a right eye disability. Private treatment records from the Medical Eye Associated show refractive defects but no right eye disability. The Board notes that private treatment records of August 2011 show the Veteran was seen after a fall where he hit the right side of his face and was diagnosed with hemorrhage on the right eye. However, this is clearly an injury which happened post service and therefore, not subject to service connection. Moreover, the injury was acute and resolved without any apparent residuals. The record does not suggest that this injury was in any way related to the Veteran's military service. The Veteran was afforded a VA examination in February 2012. At the time, the examiner noted that the Veteran did not have a diagnosis of and had not had a diagnosis of any eye condition other than congenital or developmental refractive defects. No etiology opinion was provided as there was no eye disability diagnosed. The Veteran's refractive error does not constitute disability for VA purposes. See 38 C.F.R. § 3.303(c) and 4.9 (providing that refractive error is not a disease or injury for VA compensation purposes). See also Winn v. Brown, 8 Vet. App. 510, 516 (1996). While the examiner checked a box noting that the Veteran had a corneal condition, he noted that the Veteran had not had a corneal transplant, did not have keratoconus, did not have pterygium, and did not have any other corneal condition that resulted in an irregular cornea. Further, the Veteran did not have any decrease in visual acuity or other visual impairment as a result of keratoconus or another corneal condition. The examiner observed that the finding of corneal arcus was incidental and not related to diabetes and did not have an effect on his vision. Thus, while the Veteran has a finding of corneal arcus, this condition does not appear to be disabling or result in any functional limitation of the right eye. The record does not show any other current eye disability. The Board has considered the Veteran's contentions that he currently has a right eye disability. However, the evidence of record does not show that the Veteran has an underlying eye disability other than his refraction error. In order to warrant service connection, the threshold requirement is competent medical evidence of the existence of the claimed disability at some point during a veteran's appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim"); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the Board recognizes the Veteran's sincere belief in his claim, the most competent medical evidence of record does not show that the Veteran has a current right eye disability within the meaning of applicable legislation. Nor is there any evidence of a superimposed disability on the Veteran's congenital or developmental refractive error. As there is no competent evidence of a current right eye disability within the meaning of applicable legislation or evidence of a superimposed disability, the Board concludes that the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C.A. § 5107(b); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). B. Depressive Disorder The Veteran seeks service connection for an acquired psychiatric disorder to include depressive disorder. After a careful review of the evidence, the Board finds that the preponderance of the evidence is in the Veteran's favor and service connection for depressive disorder is warranted. Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2015). The Court has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). To establish entitlement to service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. In this case, the Veteran has a current disability, diagnosed as a depressive disorder and/or major depressive disorder (MDD). Thus, the first element of service connection on a secondary basis has been met. The Veteran is also service connected for erectile dysfunction and residuals of circumcision, to include voiding dysfunction. Thus, the second element of a secondary service connection claim has been met. The crux of this case is whether the Veteran's depressive disorder is caused or aggravated by erectile dysfunction and residuals of circumcision, to include voiding dysfunction. The record contains a single medical opinion as to whether such a relationship exists. A private medical opinion of August 2015 states that after a review of the claim file and an interview with the Veteran, the residuals of a circumcision with voiding dysfunction and erectile dysfunction are more likely than not aggravating the Veteran's depressive disorder. In support of his opinion, he submitted various medical journal articles and noted that there is a body of literature detailing the connection between these medical issues which show there is in fact a causal relationship between them. The Board places great probative weight on the opinion above. It was provided by a psychologist after a review of the file and an interview of the Veteran. It was accompanied by detailed findings and a rationale which was supported by cited medical journals. Indeed, there is no reason to doubt the competency and reliability of the opinion. Moreover, the opinion stands uncontradicted by any other opinion of record. Accordingly, entitlement to service connection for a depressive disorder as secondary to service-connected erectile dysfunction and residuals of circumcision, to include voiding dysfunction is granted. C. Migraine Headaches The Veteran seeks service connection for headaches. After a careful review of the evidence, the Board finds that the preponderance of the evidence is in the Veteran's favor and service connection for migraine headaches is warranted. A December 2015 examination by a private physician notes a diagnosis of migraine headaches. The examination report notes that the Veteran reported his headaches started shortly after service. He experiences light and sound sensitivity, occasional nausea and vomiting, reduced power of concentration and dizziness during the headaches. The physician opined that it is at least as likely as not that the Veteran's headaches are caused by his depressive disorder. He reasoned that medical research states that patients with mental health conditions are more likely to develop headaches because pain and mood are regulated by the same part of the brain. He further noted that the Veteran reported that when his depression is worse, he notices it brings on a headache. In this case, the Veteran has a current disability, migraine headaches. Thus, the first element of service connection on a secondary basis has been met. The Veteran is also now service connected for depressive disorder. Thus, the second element of a secondary service connection claim has been met. The crux of this case is whether the Veteran's migraine headaches are caused or aggravated by the now service connected depressive disorder. The Board places great probative weight on the medical opinion above. It was provided by a physician after a review of the file and an examination of the Veteran. It was accompanied by detailed findings and a full rationale which was supported by cited medical journals. Indeed, there is no reason to doubt the competency and reliability of the opinion. Moreover, the opinion stand uncontradicted by any other opinion of record. Accordingly, entitlement to service connection for headaches as secondary to service-connected depressive disorder is granted. Claims for Higher Ratings Disability ratings are determined by comparing a Veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4. (2015). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015). 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). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration must be given to staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). A. Erectile Dysfunction A December 2010 rating decision granted service connection for erectile dysfunction and assigned a noncompensable rating, under Diagnostic Codes 7599-7522, effective August 3, 2011. A July 2015 rating decision increased the rating for erectile dysfunction to 20 percent, also effective August 3, 2011. Erectile dysfunction is not listed on the Rating Schedule, and the RO assigned DC 7599-7522 pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded as the first two numbers of the most closely related body part and "99." See 38 C.F.R. § 4.20. The second diagnostic code is the residual condition on the basis for which the rating is determined. The RO determined that the most closely analogous diagnostic code is 38 C.F.R. § 4.97, DC 7522, for a penis deformity. Under DC 7522, deformity of the penis with loss of erectile power warrants a 20 percent rating. A note to DC 7522 indicates that entitlement to special monthly compensation (SMC) under 38 C.F.R. § 3.350 should be reviewed. 38 C.F.R. § 4.115b, DC 7522. In this regard, since August 3, 2011, the Veteran has received SMC based on loss of use of a creative organ pursuant to 38 C.F.R. § 3.350(a). Therefore, this decision will not include any further discussion of entitlement to special monthly compensation. At the November 2014 VA examination it was noted the Veteran suffered from erectile dysfunction which prevented him to achieve sufficient erection for penetration and ejaculation. While a history of chronic epididymitis, epididymo-orchitis or prostatitis, was noted; no current diagnosis of these conditions was made at the time of the examination. Upon physical examination it was noted the Veteran's penis was deformed in that the meatil opening is pinhole in diameter. Testes, epididymis, and prostate were normal. Under Diagnostic Code 7522, deformity of the penis with loss of erectile power is rated as 20 percent disabling. 38 C.F.R. § 4.115b (2015). As noted, the Veteran erectile dysfunction is rated as 20 percent disabling, which the maximum allowable is rating under Diagnostic Code 7522. As noted, 20 percent is the highest disability rating assignable under DC 7522. Nevertheless, the Board has considered the Veteran's service-connected erectile dysfunction under all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, after careful review of the available diagnostic codes and the medical evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign a rating higher than the 20 percent rating assigned herein. Therefore, based on the foregoing and after considering all pertinent evidence of record, the Board finds that the preponderance of the evidence is against a finding of a disability rating in excess of 20 percent for the Veteran's service-connected erectile dysfunction. In making this determination, all reasonable doubt has been resolved in favor of the Veteran. See Ortiz, 274 F.3d at 1365. The Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, there is not such an approximate balance of the positive evidence and the negative evidence to permit a more favorable determination. Accordingly, a rating greater than 20 percent for erectile dysfunction is denied. B. Residuals of circumcision with voiding dysfunction A December 2010 rating decision granted service connection for residuals of circumcision with voiding dysfunction and assigned a 40 percent disability rating, under Diagnostic Codes 7518, effective August 3, 2011. DC 7518 indicates that stricture of urethra is to be rated as voiding dysfunction. Pursuant to the rating criteria for dysfunctions of the genitourinary system, voiding dysfunction, to include continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, is assigned, in pertinent part, a 40 percent disability rating when requiring the wearing of absorbent materials which must be changed two to four times per day; and a 60 percent disability rating (the maximum available) when requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. See 38 C.F.R. § 4.115a. At the November 2014 VA examination, it was noted the Veteran suffers from voiding dysfunction which causes an increased need for urination but without any urine leakage, or the need for use of an appliance. There was evidence of obstructed voiding in the form of decreased force of stream. There was no evidence of urinary tract or kidney infections. After a review of the evidence above, the Board finds that the rating criteria for an increased rating in excess of 40 percent have not been met at any time during the appeal period. The evidence does not demonstrate that the Veteran required the use of an appliance or absorbent materials which must be changed more than four times per day to warrant the next higher rating of 60 percent for voiding dysfunction. After a review of all the evidence in this Veteran's case, the Board finds that the Veteran's service-connected residuals of circumcision is manifested by urinary urgency and frequency, and decreased urinary stream. The Board has considered the Veteran's service-connected residuals of circumcision under all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991), to include DC 7101 for renal dysfunction. However, after careful review of the available diagnostic codes and the medical evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign a rating higher than the 40 percent rating assigned herein. Therefore, based on the foregoing and after considering all pertinent evidence of record, the Board finds that the preponderance of the evidence is against a finding of a disability rating in excess of 40 percent for the Veteran's service-connected residuals of circumcision with voiding dysfunction. In making this determination, all reasonable doubt has been resolved in favor of the Veteran. See Gilbert, 1 Vet. App. at 55. The Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, there is not such an approximate balance of the positive evidence and the negative evidence to permit a more favorable determination. Accordingly, a rating greater than 40 percent for residuals of circumcision with voiding dysfunction is denied. ORDER Service connection for a right eye disability is denied. Service connection for depressive disorder is granted. Service connection for migraine headaches is granted. Entitlement to a disability rating in excess of 20 percent for erectile dysfunction is denied. Entitlement to a disability rating in excess of 40 percent for residuals of a circumcision with voiding dysfunction is denied. REMAND The Veteran seeks service connection for gout of the right foot, an acquired psychiatric disorder to include PTSD and depression, headaches, and sleep apnea. After a review of the claim file, the Board finds that additional development is needed prior to deciding these issues. As to the sleep apnea and an acquired psychiatric disorder, it appears there may be outstanding treatment records which need to be obtained. In an April 2011 VA Form 21-4142, the Veteran noted he was treated for his PTSD and sleep apnea by Jay Sauls Clinician GPC, PA. In a May 2012 deferred rating, the RO noted that the Veteran had submitted a VA Form 21-4142 for Dr. Hoeper and Jay Sauls, and noted that they had an obligation to request records form both doctors. A review of the record shows that the RO requested records for Dr. Hoeper. However, there are no requests for records from Jay Sauls. Also, it is unclear if J. Sauls is a doctor or a physician's assistant. The RO refers to him as a doctor, but the 21-4142 notes him as a PA. The Board has carefully reviewed all of the private treatment records associated with the file and there are none which note a Dr. Sauls or otherwise mention a Jay Sauls. Therefore, it is unclear at this point whether there are outstanding records which are yet to be obtained. In order to ensure due process, clarification from the Veteran as to treatment by J. Sauls should be sought and if it is determined that there are outstanding records, those should be obtained. Regarding the Veteran's gout, the Veteran was afforded a VA examination in February 2012. At the time, the examiner stated that worsening of the gout on the right foot is at least as likely as not a continuation of the complaints while in service due to the injury of a burn to the right foot; gout can be precipitated by trauma. The RO sought an addendum opinion, and such was provided in December 2012. At the time, the same examiner of the February 2012 examination stated that the gout in the Veteran's right foot did not occur as a result of the burn with hot steam from a cooking kettle in service. They just happen to coexist as two entirely different problems. The original statements were meant to convey that the burn injury to the foot caused the soft tissue injury and gout, an inflammatory process probably hurt more in that foot due to the inflammation it caused as tissue was sensitive due to the burn. The Board is finds that a new opinion is needed prior to deciding the claim. While the examiner has now clarified that the burn in service to the right foot did not cause the current gout of the right foot. It is unclear as to whether it aggravated the condition. Moreover, it is unclear as to whether trauma can precipitate gout or lead to more incidents of gout. In the addendum opinion, the examiner failed to provide a reasoning as to why the two conditions, the burn and the gout, are not related. Therefore, a new opinion is needed prior to deciding the claim. As to the chronic pain of the joints, the Veteran he suffers from chronic pain since service or in the alternative, he has chronic pain which is aggravated and/or caused by the now service connected depressive disorder. The record shows that in March 2007 the Veteran was treated for chronic pain of the back and neck. The RO has denied the claim based on the lack of a diagnosed disability. The Veteran has not been afforded a VA examination; however, there appears to be treatment for chronic pain of the neck and back. As such, the Board finds that a VA examination is needed prior to deciding the claim. Finally, the Board notes that a claim for a TDIU is part of a rating issue when such claim is raised by the record during the rating period. Rice, 22 Vet. App. 447. An August 2015 private medical opinion states the Veteran can no longer work due to his now service connected depressive disorder and his service connected voiding dysfunction and erectile dysfunction. The record shows the Veteran is currently unemployed. The Board finds that the evidence has reasonably raised a claim for a TDIU in conjunction with the increased rating issue decided herein; however, a remand is required prior to adjudication of the claim for a TDIU because the Veteran has not been provided adequate VCAA notice regarding substantiation of TDIU, nor has the AOJ adjudicated TDIU in the first instance. Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the Veteran had request that he clarify if he received treatment for his PTSD and sleep apnea from Jay Sauls. If so, the Veteran should identify the dates of treatment place of treatment to include an address. All outstanding records not already on file should be obtained and associated with the claim file. All efforts to obtain the records should be clearly documented in the file. 2. The AOJ should schedule the Veteran for a VA examination to determine the nature and etiology of his right foot gout with an examiner other than the one who conducted the February 2012 VA examination and who provided the December 2012 addendum opinion. The claim file should be made available to the examiner and the examination report must state that a review of the file was conducted. Any and all appropriate tests should be conducted. The examiner should provide an opinion as to whether the gout of the right foot was caused or aggravated by the burn of the right foot in service. A complete rationale for any and all opinions rendered must be provided. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any disability associated with chronic pain of the joints. The claim file should be made available to the examiner and the examination report must state that a review of the file was conducted. Any and all appropriate tests should be conducted. The examiner should identify any disability associated with chronic pain of the joints. If a disability is diagnosed, the examiner should provide an opinion as to whether the diagnosed disability was caused or aggravated by service or the service connected depressive disorder. A complete rationale for any and all opinions rendered must be provided. 4. The AOJ should send the Veteran VCAA notice that addresses a claim for a TDIU. 5. After all available evidence has been associated with the record, the AOJ should review the evidence and determine if further development is warranted for TDIU. The AOJ should take any additional development as deemed necessary. 6. After all development has been completed, the AOJ should adjudicate the issues on appeal based on all of the evidence of record. If any aspect of the appeal remains denied, provide the Veteran and representative with a supplemental statement of the case and allow an appropriate time for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs