Citation Nr: 1639307 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 13-06 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an earlier effective date than January 5, 2011 for service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a separate compensable evaluation for erectile dysfunction. 3. Entitlement to service connection for benign prosthetic hypertrophy. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from August 1969 to August 1971. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. The Veteran and his spouse provided sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge in June 2016; the hearing transcript has been associated with the file and has been reviewed. At his June 2016 Board hearing the Veteran indicated he wished to raise a motion of clear and unmistakable error (CUE) in the March 2008 rating decision that denied service connection for depression. Effective March 24, 2015, when a claimant indicates a desire to apply for VA benefits, but the communication does not meet the standards of a complete claim for benefits, the communication will be considered a request for an application form for benefits under 38 C.F.R. § 3.150 (a). 79 Fed. Reg. 57,660, 57,695 (Sept. 25, 2014); 38 C.F.R. § 3.155 (a) (2015). When such a communication is received, VA shall notify the claimant and the claimant's representative of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155 (a). In light of the foregoing, the Veteran's motion for CUE in the March 2008 rating decision is referred to the AOJ for clarification and any appropriate action. 38 C.F.R. § 19.9 (b) (2015). In a June 2016 supplemental claim the Veteran also claimed service connection for a heart condition due to Agent Orange exposure and bilateral lower extremity neuropathy and a bilateral eye condition, both as secondary to his service-connected diabetes. As these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issues of entitlement to service connection for BPH and entitlement to an earlier effective date than January 5, 2011 for service connection for PTSD being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's erectile dysfunction is not manifest with deformity of the penis. CONCLUSIONS OF LAW The criteria for a separate compensable rating for erectile dysfunction have not been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.115b, 4.119, Diagnostic Codes 7522, 7913 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Erectile Dysfunction Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. The Veteran's diabetes mellitus has been rated at 20 percent according to the provisions provided in 38 C.F.R. §4.119, Diagnostic Code 7913. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913). Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119. Erectile dysfunction is not specifically listed in the rating schedule. The most closely aligned rating criteria for the disability are found in Diagnostic Code 7522, which provides that deformity of the penis with loss of erectile power is rated 20 percent disabling, and the adjudicator is to review for entitlement to special monthly compensation under 38 C.F.R. § 3.350. 38 C.F.R. § 4.115b. In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. For a compensable rating to be assigned for erectile dysfunction, the medical evidence must confirm deformity of the penis with loss of erectile power. The Veteran has not contended, and the evidence does not suggest, that the Veteran has any deformity of the penis as part of his erectile dysfunction related to his diabetes. On VA examination in October 2014 his penis was noted to be normal on physical examination. Therefore, entitlement to a compensable rating is denied. The Board notes that the Veteran is already in receipt of special monthly compensation for his erectile dysfunction. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. A notice letter was sent to the Veteran in July 2013, prior to the initial adjudication of the claim on appeal. The letter informed the Veteran of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. He was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The letter also addressed VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records, VA treatment records, and private treatment records identified by the Veteran. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded a VA medical examination of his erectile dysfunction in October 2014. The examiner, a medical professional, listened to the Veteran's assertions and performed a physical examination. The Board finds that the examination is adequate and contains sufficient information to decide the issue on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183 (2002). ORDER A separate compensable evaluation for erectile dysfunction is denied. REMAND A preliminary review of the record reflects that further development is necessary. Concerning the BPH, the Veteran has testified that VA physicians informed him the condition could be caused, at least in part, by his service-connected diabetes mellitus. The Veteran further testified that he was on medications for various service-connected conditions that listed BPH as a side effect. While the Veteran's reproductive system was examined in October 2014 and the examiner noted the Veteran had a voiding dysfunction as a result of an enlarged prostate, that examination specifically noted that the prostate was not examined. Furthermore, there is no opinion of record as to the etiology of the condition. Accordingly, a VA examination should be obtained. Concerning the claim for an earlier effective date, as noted above, the Board is referring a motion for clear and unmistakable error (CUE) in the March 2008 rating decision denying service connection for depression. As a successful CUE claim could result in an earlier effective date for service connection of PTSD, the Board finds his CUE claim should be adjudicated prior to the earlier effective date claim currently before the Board. Therefore, as the claim currently on appeal is inextricably intertwined with the new CUE claim, the CUE claim is referred to the RO for consideration and the Board will hold appellate adjudication of the claim for an earlier effective date in abeyance pending the RO's determination. Accordingly, the case is REMANDED for the following action: 1. Schedule an appropriate VA examination to assist in determining the nature and etiology of any currently diagnosed prostate disability. The claims file should be made available to the examiner. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. The VA examiner should state whether it as likely as not (a 50 percent or greater probability) that any currently diagnosed prostate disability is etiologically related to any incident of active duty. The examiner is also asked to opine whether it is at least as likely as not (a 50 percent or greater probability) that any current prostate disability is due to or aggravated by (permanently worsened in severity beyond the natural progress of the disorder) the service-connected diabetes mellitus, or any other service-connected disability, including any medications the Veteran takes for his service-connected disabilities If aggravation is found, the examiner is requested to discuss the baseline level of the disability prior to the onset of aggravation. A complete rationale for any opinion provided is requested. 2. Take appropriate action on the Veteran's request to file a motion for clear and unmistakable error in the March 2008 rating decision denying service connection for depression. If the Veteran files the appropriate claim, adjudicate such claim. 3. Thereafter, readjudicate the claims. If the benefit sought on appeal remains denied, the case should be returned to the Board for appellate review. 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). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs