Citation Nr: 1756536 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 16-40 631A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for a psychiatric disorder. 3. Entitlement to service connection for obstructive sleep apnea. 4. Entitlement to service connection for tinnitus. 5. Entitlement to an initial disability rating greater than 30 percent for service-connected chronic diarrhea associated with prostate cancer. 6. Entitlement to an initial compensable disability rating for service-connected erectile dysfunction associated with prostate cancer. 7. Whether the reduction of a 100 percent disability rating to 20 percent for service-connected prostate cancer was proper; to include entitlement to a disability rating greater than 20 percent from May 1, 2014, and greater than 40 percent from December 18, 2015. 8. Entitlement to higher level of special monthly compensation based on the loss of use of a creative organ. 9. Entitlement to an effective date earlier than August 9, 2013, for the award of separate service connection for chronic diarrhea associated with prostate cancer. 10. Entitlement to an effective date earlier than August 9, 2013, for the award of separate service connection for erectile dysfunction associated with prostate cancer. 11. Entitlement to an effective date earlier than August 9, 2013, for the award of separate service connection for special monthly compensation based on the loss of use of a creative organ. ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from August 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2013, February 2014, and May 2016 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Columbia, South Carolina. In November 2013, the Veteran had submitted an Appointment of Individual as Claimant's Representative (VA Form 21-22a) appointing J. M. Woods, Attorney, as his representative. However, in correspondence received in October 2016, the Veteran's representative advised the RO that he no longer represented the Veteran in this matter. The Veteran has not subsequently appointed a representative in this matter. The Veteran's claims file has been converted into a paperless claims file via the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. All records in such files have been considered by the Board in adjudicating this matter. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). The issue of service connection for tinnitus is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence of record fails to demonstrate that the Veteran has a disability manifested by headaches as a result of his period of active service. 2. The evidence of record fails to demonstrate that the Veteran has a psychiatric disorder as a result of his period of active service. 3. The evidence of record fails to demonstrate that the Veteran has obstructive sleep apnea as a result of his period of active service. 4. The service-connected chronic diarrhea associated with prostate cancer is manifested by three to six bowel movements per day and more or less constant abdominal distress. 5. The service-connected erectile dysfunction associated with prostate cancer is not shown to be manifested by deformity of the penis. 6. In September and October 2013 rating decision, the RO notified the Veteran of a proposed rating reduction in the disability rating for the service-connected prostate cancer from 100 percent to 20 percent; a February 2014 rating decision reduced the disability rating for the service-connected prostate cancer from 100 percent to 20 percent, effective May 1, 2014. 7. The probative medical evidence of record shows no recurrence of cancer or metastasis, and the Veteran's most recent prostate specific antigen (PSA) level on VA examination in December 2015 was 0.97. 8. From May 1, 2014, to December 17, 2015, the objective medical evidence demonstrates that the Veteran's residuals of prostate cancer are predominantly manifested by urinary frequency of daytime voiding interval between one and two hours, and night time voiding of three to four times at night, with obstructed voiding that is not characterized as marked. 9. From December 18, 2015, the objective medical evidence demonstrates that the Veteran's residuals of prostate cancer are predominantly manifested by urinary frequency of daytime voiding interval between one and two hours, and night time voiding of five or more times at night, with obstructed voiding that is not characterized as marked. 10. The Veteran is already in receipt of the maximum level of special monthly compensation for the loss of use of a creative organ. 11. The Veteran was first diagnosed with chronic diarrhea and erectile dysfunction on VA examination dated August 9, 2013. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for headaches have not been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 2. The criteria for the establishment of service connection for a psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 3. The criteria for the establishment of service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 4. The criteria for an initial disability rating greater than 30 percent for service-connected chronic diarrhea associated with prostate cancer have not been met. 38 U.S.C. § 1155, 5103, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.114 Diagnostic Code 7319 (2017). 5. The criteria for a compensable disability rating for service-connected erectile dysfunction associated with prostate cancer have not been met. 38 U.S.C. §§ 1155, 5103, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.115b, Diagnostic Code 7522 (2017). 6. The criteria for restoration of a 100 percent disability rating for prostate cancer have not been met. 38 U.S.C. §§ 1155, 5103, 5107 (West 2012); 38 C.F.R. §§ 3.105, 3.344, 4.115b, Diagnostic Code 7528 (2017). 7. The criteria for a disability rating in excess of 20 percent for residuals of prostate cancer, from May 1, 2014, to December 17, 2015, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.115a, 4.115b, Diagnostic Code 7528 (2017). 8. The criteria for a disability rating in excess of 40 percent for residuals of prostate cancer, from December 18, 2015, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.115a, 4.115b, Diagnostic Code 7528 (2017). 9. The criteria for a higher level of special monthly compensation based on the loss of use of a creative organ have not been met. 38 U.S.C. §§ 1114 (k), 1155, 5103, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.350 (2017). 10. The criteria for an effective date earlier than August 9, 2013, for service connection for chronic diarrhea associated with prostate cancer have not been met. 38 U.S.C. §§ 5101, 5110 (West 2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 11. The criteria for an effective date earlier than August 9, 2013, for service connection for erectile dysfunction associated with prostate cancer have not been met. 38 U.S.C. §§ 5101, 5110 (West 2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 12. The criteria for an effective date earlier than August 9, 2013, for entitlement to special monthly compensation on account of the loss of use of a creative organ have not been met. 38 U.S.C. §§ 1114, 5101, 5110 (West 2012); 38 C.F.R. §§ 3.102, 3.350, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in April 2014, March 2015, March 2016, and May 2016 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. In claims for an increased initial disability rating, the appeal arises from a grant of service connection; and as the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify the Veteran is satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nevertheless, in the above mentioned letters and other correspondence provided by the RO, the Veteran was notified of the type of evidence needed to substantiate the claims, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. For the increased-compensation claims that do not arise from an initial grant of service connection, the VCAA requirement is generic notice. The type of evidence needed to substantiate the claim is evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above mentioned letters and other correspondence provided by the RO. Specifically, VA informed the Veteran of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disabilities, and the effect that the worsening has on his employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. The Veteran was also provided notice of the applicable relevant diagnostic code provisions. As to the claims for an earlier effective date for the grant of service connection, the claims arise from the Veteran's disagreement with the effective date assigned following the grant of service connection. Once a claim is granted, it is substantiated and additional notice is not required. Thus, any defect in notice would not be prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has not been afforded a VA examination in connection with the claims of service connection for headaches, a psychiatric disorder, and obstructive sleep apnea. A VA medical examination must be provided when there is (1) competent medical evidence of a current disability, or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability, or persistent or recurrent symptoms of a disability, may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). As will be discussed in detail below, there is no competent evidence that he experienced any such disorder in service or that he has a current diagnosis attributable to any incidence of service. As there is no competent evidence suggesting a current disability, there is no duty to provide a VA examination or obtain an opinion. See McLendon, 20 Vet. App. at 79; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Veteran has, otherwise, been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Service Connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases, such as psychosis, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112 (West 2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Headaches, Psychiatric Disorder, and Obstructive Sleep Apnea The Veteran asserts that he has a headache disability, a psychiatric disorder, and obstructive sleep apnea, that are manifested as a result of his period of active service. Based on the evidence of record, the Board determines that service connection is not warranted for any of these disorders. First, a review of the Veteran's service treatment records shows that they are completely negative for reports of headaches, a psychiatric disorder, or sleep apnea during active service. Both the March 1966 pre-induction report of medical examination and the July 1968 separation report of medical examination indicate that clinical evaluation was within normal limits. In the respective associated report of medical history, the Veteran indicated that he had never had frequent or severe headaches, nervous trouble of any sort, or frequent trouble sleeping. Following service, there is no evidence of the manifestation of a psychosis within one year of separation from service. Thereafter, VA and private outpatient treatment records dated from 2008 to 2016 do not show any treatment for or diagnosis of any symptoms associated with the asserted headaches, psychiatric disorder, or obstructive sleep apnea. In fact, VA outpatient treatment records dated in April 2014, May 2015, and May 2016 show that the Veteran denied having any headaches or symptoms associated with a neuropsychiatric disorder. The Board recognizes the Veteran's contentions that he the respective asserted disabilities as a result of active service. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. Simply stated, the Veteran's service treatment records (showing no chronic disability at separation from service) and post-service treatment records (showing no current diagnosis or competent medical evidence linking the asserted disabilities to service) outweigh the Veteran's contentions. A basis upon which to grant the Veteran's claims of service connection for a headache disability, a psychiatric disorder, and obstructive sleep apnea has not been established, therefore, the claims must be denied. As the preponderance of the evidence is against the service connection claims, the benefit-of-the-doubt doctrine is not helpful to the Veteran. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Disability Ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2017). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2017). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2017) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). Diarrhea The Veteran's chronic diarrhea has been rated as 30 percent disabling under 38 C.F.R. § 4.114 , Diagnostic Code 7319, by analogy to the rating criteria for irritable colon syndrome (spastic colitis, mucous colitis, etc.). Under this diagnostic code provision, the maximum 30 percent disability rating is assigned when irritable colon syndrome is severe, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single disability rating will be assigned under the diagnostic code provision that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. A VA prostate examination report dated in August 2013 shoes that examiner, in pertinent part, noted that the Veteran had bowel urgency with watery diarrhea. A VA intestinal conditions examination report dated in September 2013 shows that the Veteran was diagnosed with chronic diarrhea following radiation treatment for prostate cancer. The Veteran was said to have water diarrhea five to six times per day and more or less constant abdominal distress. There was no related weight loss or malnutrition. He was also said to have about a five minute warning before he had to go, and that this had impacted his ability to work in a court room setting as an attorney. A VA intestinal conditions examination report dated in December 2015 shows that the Veteran was diagnosed with irritable bowel syndrome. The Veteran reported experiencing three to four bowel movements per day that would occur after eating. The examiner indicated that there were no episodes of bowel disturbance with abdominal distress or exacerbations or attacks of an intestinal condition. There was no related weight loss or malnutrition. VA outpatient treatment records dated from August 2013 to May 2016 show intermittent treatment for symptoms associated with irritable bowel syndrome with chronic diarrhea. The Veteran was advised to continue medications and adhere to a low fat diet. Having considered the medical evidence of record, along with the statements of the Veteran, the Board finds that the criteria for a disability rating greater than 30 percent for chronic diarrhea have not been met. In this regard, over the entire period on appeal, the Veteran's disability has been manifested primarily by chronic diarrhea, with intermittent abdominal pain. Under Diagnostic Code 7319, the maximum 30 percent disability rating is assigned with severe symptoms of diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress. This is the maximum disability rating available under this diagnostic code provision such that a higher rating is not available. The Board has considered whether the Veteran's disability warrants a higher disability rating under any other applicable diagnostic code provision. Under Diagnostic Code 7323, a higher 60 percent disability rating would be warranted for ulcerative colitis that is severe with numerous attacks a year and malnutrition, with the health only fair during remissions. While the Veteran's diarrhea, at times, has been characterized as severe, there is no evidence at any time that his disability has resulted in malnutrition. The rating criteria in this instance is worded in the conjunctive with the use of the word "and" in identifying the requirements for a 60 percent disability rating. In order to meet the criteria, the disability must be manifested by both severe ulcerative colitis and malnutrition. See Camacho v. Nicholson, 21 Vet. App. 360 (2007). As such, the Board finds that a 60 percent disability rating for ulcerative colitis under Diagnostic Code 7323 is not appropriate. It is noted, Diagnostic Codes 7319 and 7323 may not be combined with each other, but rather a single disability rating is assigned reflecting the predominant disability picture, which in this case is irritable bowel syndrome. Additionally, the Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. See Layno, 6 Vet. App. at 470. However, in evaluating a claim for an increased disability rating, VA must consider the factors enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Based upon the guidance of the Court in Fenderson, the Board has considered whether a staged rating is appropriate. However, in the present case, the Veteran's symptoms have remained relatively constant throughout the course of the period on appeal and, as such, staged ratings are not warranted. For the aforementioned reasons, the Board finds that the weight of the evidence is against a finding of a disability rating greater than 30 percent for service-connected chronic diarrhea associated with prostate cancer. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine is not helpful to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. Erectile Dysfunction Service connected has been established for erectile dysfunction associated with prostate cancer, for which a noncompensable disability rating has been assigned under Diagnostic Code 7599-7522. Under Diagnostic Code 7522, a penis deformity with a loss of erectile power warrants a 20 percent disability rating. This is the sole disability rating provided under this diagnostic code provision. It is noted that the Veteran has been granted entitlement to special monthly compensation based on the loss of use of a creative organ. For the Veteran to warrant a higher disability rating for his erectile dysfunction under Diagnostic Code 7522, the evidence must demonstrate a deformity of the penis with loss of erectile power. The August 2013 VA examination report shows that the Veteran was diagnosed with erectile dysfunction resulting from the prostate cancer and resulting treatment. The Veteran was not able to achieve an erection sufficient for penetration and ejaculation, with or without medication. There were no scars or pertinent physical findings. The December 2015 VA examination report shows that the Veteran reported his erectile dysfunction had increased in severity. He described that he was unable to get an erection with or without medications. He had not had intercourse in a long time because of this. The Veteran's penis, testes, and epididymis were not examined per his request; as he reported normal anatomy with no penile, testicular, or epididymis deformity or abnormality. The disability was said not to impact occupational functioning. Having carefully considered the competent medical evidence of record, the Board concludes that a compensable disability rating for the Veteran's erectile dysfunction is not warranted for any time covered by this appeal. While the medical evidence of record shows that the Veteran experiences erectile dysfunction, this has been compensated by the special monthly compensation for the loss of use of a creative organ. For the Veteran to warrant a higher disability rating for his erectile dysfunction, Diagnostic Code 7522 requires a deformity of the penis with loss of erectile power. The foregoing medical examination reports are evidence against the claim as they fail to show any deformity of the penis. Rather, the penis was said to be normal by the Veteran's own admission. Accordingly, the criteria for a compensable disability rating based on deformity of the penis with loss of erectile power have not been met for any portion of the rating period on appeal. The Board has considered the statements of the Veteran as to the extent of his current erectile dysfunction. He is certainly competent to report that his symptoms have worsened. See Layno, 6 Vet. App. at 470. However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. For the aforementioned reasons, the Board finds that the weight of the evidence is against a finding of a compensable disability rating for the service-connected erectile dysfunction associated with prostate cancer. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine is not helpful to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. Prostate Cancer In January 2010, the RO granted the Veteran's service connection claim for prostate cancer, assigning a 100 percent disability rating effective as of October 9, 2009. Private medical treatment records dated from July 2008 had shown that the Veteran was diagnosed with adenocarcinoma of the prostate. He was treated with Lupron injections and radiation therapy to include gold seed implants. A treatment record dated in December 2008 showed that the Veteran was doing well after receiving 10 treatments with approximately 30 treatments remaining. In May 2009, it was noted that he was doing well after radiation therapy with a PSA of less than 0.1, however he was prescribed an additional four month series of Lupron. The August 2013 VA examination report shows that the Veteran had completed radiation therapy and androgen deprivation therapy in 2009. His prostate cancer was said to have been in remission. It was indicated that the prostate cancer treatment had resulted in voiding dysfunction which did not result in the use of absorbent material or the use of an appliance. There was daytime voiding interval between one and two hours. He would awaken to void three to four times at night. The voiding dysfunction resulted in signs or symptoms of obstructive voiding, to include a slow or weak stream and decreased force of stream. There was no history of recurrent symptomatic urinary tract or kidney infections. The Veteran indicated that his most recent PSA level was 0.3, and that it was the lowest it had been. The December 2015 VA examination report shows that the Veteran's prostate cancer was said to continue to be in remission. A history as set forth above was reiterated. The examiner described voiding dysfunction with daytime voiding intervals between one and two hours and night time awakening to void five or more times. There was no leakage that required the use of an appliance. There was also a slow and weak stream, but not markedly slow or weak. The most recent PSA level measured in April 2014 was found to be 0.97. The prostate cancer did not impact the Veteran's occupational functioning. The Veteran was initially assigned a 100 percent disability rating pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7528, which provides for malignant neoplasms of the genitourinary system. The note following this diagnostic code provision indicates that, following the cessation or surgery, chemotherapy, or other therapeutic procedure, a rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105 (e). If there has been no local recurrence or metastasis, then the Veteran's cancer is rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. Id. The evidence shows that the Veteran received no surgery, chemotherapy, or other therapeutic procedure for prostate cancer after May 2009. The provisions of 38 C.F.R. § 3.105 (e) allow for the reduction in the disability rating of a service-connected disability when warranted by the evidence but only after following certain procedural guidelines. First there must be a rating action proposing the reduction, and giving the Veteran 60 days to submit additional evidence and request a predetermination hearing. If a hearing is not requested, and reduction is considered to be still warranted, a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105 (e), (i)(2). The effective date of the reduction will be the last day of the month in which a 60 day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105 (e), (i)(2)(i). The Veteran was notified of the RO's intent to reduce the 100 percent disability rating for the service-connected prostate cancer by rating actions dated in September and October 2013, which was sent accompanied by respective notice letters. Thereafter, he was afforded an opportunity to have a pre-determination hearing and given at least 60 days in which to present additional evidence. 38 C.F.R. §§ 3.105 (e), (i) (2017). Final action to reduce the 100 percent disability rating to 20 percent was taken pursuant to 38 C.F.R. § 3.105 (e) in February 2014. The reduction was made effective beginning May 1, 2014. Based on a review of this procedural history, it appears that the RO complied with all of the requirements of 38 C.F.R. § 3.105 (e). The Veteran was notified of his rights. He was given an opportunity for a hearing and time to respond. Finally, the reduction was made effective no sooner than permitted by current law and regulations ("the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires"). 38 C.F.R. § 3.105 (e) (2017). The Veteran has not contended that these provisions were not complied with, or that he was receiving any additional treatment for prostate cancer after May 1, 2014. Therefore, all of the evidence is in favor of a finding that the reduction from 100 percent was proper. As noted above, Diagnostic Code 7528 directs that if there has been no local recurrence or metastasis, then the Veteran's cancer is rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. Id. The rating criteria for voiding dysfunction and renal dysfunction are found at 38 C.F.R. § 4.115a (2017). In this case, as the evidence suggests that voiding dysfunction is the predominant disability, and as there is no evidence of renal dysfunction, further discussion of the associated regulations is not necessary. Voiding dysfunction is rated as urine leakage, frequency, or obstructed voiding. In this regard, continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day warrants a 60 percent disability rating. Where such requires the wearing of absorbent materials which must be changed two-to-four times per day, a 40 percent disability rating is warranted. Where such requires the wearing of absorbent materials which must be changed less than two times per day, a 20 percent disability rating is warranted. Urinary frequency with daytime voiding interval less than one hour, or; awakening to void five or more times per night warrants a 40 percent disability rating. A daytime voiding interval between one and two hours, or awakening to void three to four times per night warrants a 20 percent disability rating. A daytime voiding interval between two and three hours, or awakening to void two times per night warrants a 10 percent disability rating. Obstructed voiding with urinary retention requiring intermittent or continuous catheterization warrants a 30 percent disability rating. Marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: Post void residuals greater than 150 cc.; uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); recurrent urinary tract infections secondary to obstruction; stricture disease requiring periodic dilatation every two-to-three months, warrants a 10 percent disability rating. A noncompensable rating is assigned for obstructive symptomatology with or without stricture disease requiring dilatation one-to-two times per year. As noted above, during the Veteran's August 2013 VA examination, he denied any renal dysfunction and stated that daytime voiding interval was between one and two hours, and that he would awaken to void three to four times at night. Voiding dysfunction did not result in the use of absorbent material or an appliance. In light of the foregoing, the Board finds that the 20 percent disability rating assigned from May 1, 2014, to December 17, 2015, for the service-connected prostate cancer following the reduction from 100 percent is appropriate as the evidence fails to show that he has any renal dysfunction; urine leakage requiring the wearing of absorbent materials requiring changing two to four times per day; urinary frequency with daytime interval of less than one hour or awakening to void five or more times per night; or urinary retention requiring intermittent or continuous catheterization. During the Veteran's December 2015 VA examination, he continued to deny any renal dysfunction and stated that daytime voiding interval was between one and two hours, and that night time resulted in awakening to void five or more times. There was no leakage that required the use of an appliance. There was also a slow and weak stream, but not markedly slow or weak. In light of these facts, the Board finds that the 40 percent disability rating assigned from December 18, 2015, for the service-connected prostate cancer is appropriate as the evidence fails to show that he has any renal dysfunction; or urine leakage requiring the wearing of absorbent materials requiring changing more than four times per day. The Board has considered the statements of the Veteran as to the extent of his current residuals of prostate cancer. He is certainly competent to report that his symptoms have worsened. See Layno, 6 Vet. App. at 470. However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. For the foregoing reasons, the Board finds that the reduction from 100 percent to 20 percent for the Veteran's service-connected prostate cancer was appropriate, and he is not entitled to the assignment of a disability rating greater than 20 percent prior to December 18, 2015, or greater than 40 percent since then. The preponderance of the evidence being against the claim, the benefit-of-the-doubt doctrine does not help the Veteran. Consequently, the Veteran's appeal must be denied. Special Monthly Compensation Special monthly compensation is a special statutory award granted in addition to awards based on the schedular evaluations provided by the diagnostic codes in VA's Rating Schedule. Claims for special monthly compensation, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C. §§ 1114 (k) through (s) and 38 C.F.R. §§ 3.350 and 3.352. Special monthly compensation is payable at a specified rate if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C. § 1114 (k), 38 C.F.R. § 3.350 (a). The rate of special monthly compensation is a specific value that is adjusted annually, independent of any other awarded compensation. 38 U.S.C. § 1114 (k). Here, the Veteran is currently in receipt of special monthly compensation for the loss of use of a creative organ based upon the grant of service connection for erectile dysfunction. The law does not provide for a higher rate of special monthly compensation for the loss of use of a creative organ. 38 U.S.C. § 1114 (k). Special monthly compensation rates are determined by statute and are not subject to the Board's discretion; rather, the Board is specifically prohibited from granting benefits that are not authorized by law. See 38 U.S.C. § 7104 (c); McTighe v. Brown, 7 Vet. App. 29, 30 (1994). As the disposition of this case is based on law and not the facts of this case, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Earlier Effective Dates The Veteran asserts that he is entitled to an effective date earlier than August 9, 2013, for the grant of service connection for chronic diarrhea associated with prostate cancer, erectile dysfunction associated with prostate cancer, and special monthly compensation for the loss of use of a creative organ. The evidence does not reflect that the Veteran filed a separate claim for each respective disability, but rather than the RO separately granted service connection for the conditions, finding that they were caused by the Veteran's service-connected prostate cancer. The RO assigned an effective date for service connection for prostate cancer of October 9, 2009, the date of receipt of the Veteran's claim for service connection. Thereafter, the RO assigned an effective date of August 9, 2013, for the establishment of separate service connection for the chronic diarrhea associated with prostate cancer, erectile dysfunction associated with prostate cancer, and special monthly compensation for the loss of use of a creative organ, finding that was the first date on which the respective conditions were diagnosed. In this regard, on August 9, 2013, the Veteran had undergone a VA examination in at which the examiner diagnosed chronic diarrhea and erectile dysfunction, opining that they were related to the Veteran's prostate cancer. A review of the records does not show any earlier diagnosis of chronic diarrhea or erectile dysfunction. The lay evidence further does not show an earlier onset date. Therefore, August 9, 2013, is the date entitlement arose. As the effective date of an award of benefits based on an original claim, a claim after final allowance or a claim for an increase is either (1) the date of receipt of the claim or (2) the date entitlement arose, whichever is later, August 9, 2013, is the appropriate effective date for the grant of service connection for chronic diarrhea associated with prostate cancer, erectile dysfunction associated with prostate cancer, and special monthly compensation for the loss of use of a creative organ in this case. See 38 C.F.R. § 3.400 (2017). ORDER Service connection for headaches is denied. Service connection for a psychiatric disorder is denied. Service connection for obstructive sleep apnea is denied. An initial disability rating greater than 30 percent for service-connected chronic diarrhea associated with prostate cancer is denied. Entitlement to an initial compensable disability rating for service-connected erectile dysfunction associated with prostate cancer is denied. Entitlement to restoration of a 100 percent disability rating for service-connected prostate cancer is denied. Entitlement to a disability rating in excess of 20 percent for service-connected prostate cancer May 1, 2014, to December 17, 2015, and greater than 40 percent, thereafter, is denied. Entitlement to a higher initial rate of special monthly compensation for the loss of use of a creative organ is denied. An effective date earlier than August 9, 2013, for the award of separate service connection for chronic diarrhea associated with prostate cancer is denied. An effective date earlier than August 9, 2013, for the award of separate service connection for erectile dysfunction associated with prostate cancer is denied. An effective date earlier than August 9, 2013, for the award of separate service connection for special monthly compensation based on the loss of use of a creative organ is denied. REMAND Unfortunately, a remand is required in this case as to the issue of service connection for tinnitus. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A(a) (West 2012); 38 C.F.R. § 3.159(c), (d) (2017). The Veteran asserts that he has tinnitus as a result of his period of active service, to specifically include exposure to loud noises firing weapons during active duty. A VA audiology consult dated in June 2014 shows that the Veteran was reported to have had noise exposure during service from mortars and M14's. He did not have subsequent occupational or recreational noise exposure. A VA examination report dated in April 2016 considered the Veteran's reported noise exposure in service, but concluded that Veteran's current tinnitus was less likely than not a result of military noise exposure. The examiner suggested that tinnitus can be a symptom of a wide range of non-auditory problems and medications. In this regard, 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. 38 C.F.R. § 3.310(a) (2017). The examiner did not provide an opinion as to whether the Veteran's tinnitus was either caused or aggravated by any of the medications taken for his service-connected disabilities (prostate cancer, chronic diarrhea, erectile dysfunction). As such, the Board finds that an additional opinion must be obtained. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992); see also Barr, 21 Vet. App. at 311. Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his tinnitus should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ shall ask the Veteran to identify all locations of VA treatment or evaluation for his asserted disability and contact each VA medical facility identified by the Veteran to obtain ongoing medical treatment records pertaining thereto. All records obtained must be associated with the Veteran's claims file. 2. The AOJ shall schedule the Veteran for a VA examination by an appropriate physician so as to determine the nature and etiology of his current tinnitus. The claims file, to include a copy of this Remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report. All tests and studies deemed necessary by the examiner must be conducted. The examiner should answer all of the following questions as definitively as possible: (a) Is it at least as likely as not that the Veteran's diagnosed tinnitus had its onset in service, had its onset in the year immediately following any period of service, or is otherwise the result of a disease or injury in service? (b) Is it at least as likely as not that the Veteran's diagnosed tinnitus was caused (in whole or in part) by a service-connected disability (prostate cancer, chronic diarrhea, erectile dysfunction), to include medication taken as a result thereof? (c) Is it at least as likely as not that the Veteran's diagnosed tinnitus is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by a service-connected disability (prostate cancer, chronic diarrhea, erectile dysfunction), to include medication taken as a result thereof? If the Veteran's current tinnitus is aggravated by a service-connected disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for tinnitus in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 3. The AOJ will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). ______________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs