Citation Nr: 1800659 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 17-27 762 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased disability rating in excess of 30 percent for mood disorder due to chronic pain. 2. Whether new and material evidence has been sent to reopen the claim for sexual dysfunction. 3. Entitlement to an effective date earlier than June 29, 2010, for the award of service connection for mood disorder. 4. Entitlement to an effective date earlier than April 29, 2016 for the assignment of a 10 percent disability evaluation for radiculopathy, right lower extremity. 5. Entitlement to an effective date earlier than April 29, 2016 for the assignment of a 10 percent disability evaluation for radiculopathy, left lower extremity. 6. Entitlement to an increased disability rating in excess of 20 percent for intervertebral disc syndrome (IVDS). 7. Entitlement to an increased disability rating in excess of 10 percent for radiculopathy of the left lower extremity. 8. Entitlement to an increased disability rating in excess of 10 percent for radiculopathy of the right lower extremity. 9. Entitlement to service connection for obstructive sleep apnea (OSA). REPRESENTATION The Veteran represented by: J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD P. Yoffe, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1996 to October 1997 in the U.S. Army as an infantryman and paratrooper. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2013 and January 2015 rating decisions of the Atlanta, Georgia Regional Office (RO) of the Department of Veterans Affairs (VA). 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) (2012). The issue(s) of service connection for sleep apnea and the increased ratings for right and left lower extremity radiculopathy and IVDS are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's service-connected psychiatric disabilities have been manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to symptoms such as depressed mood, decreased interest, sleep disturbance, low self-worth, and anxiety. 2. In January 2011 Rating Decision, the RO denied service connection for sexual dysfunction. 3. Evidence received since the January 2011 Rating Decision rating decision is not new or material and does not relate to an unestablished fact necessary to substantiate the claim for service connection of sexual dysfunction. 4. The Veteran did not file any document relating to a claim for a mood or other acquired psychiatric disorder prior to June 29, 2010. 5. The Veteran's initial claim of entitlement to service connection numbness of the left and right feet and knees was denied by the RO in June 2010. The Veteran filed a notice of disagreement and the previous denial was upheld in a November 2011 Statement of the Case (SOC). The Veteran failed to file a timely substantive appeal of the November 2011 determination. 6. The Veteran filed a new claim for right and left lower extremity neuropathy in April 2016; radiculopathy of the right and left lower extremity was granted, assigned at 10 percent disability, effective April 29, 2016. 7. Prior to the April 2016 claim there were no pending requests for service connection for left and right lower extremity radiculopathy that remained adjudicated. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 30 percent for a mood disorder have not been met for the entire period on appeal. 38 U.S.C. § 1155(2012); C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9435 (2017). 2. The January 2011 Rating Decision is final for sexual dysfunction. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 3. Evidence received since the January 2011 Rating Decision is not new and material and the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for an effective date earlier than June 29, 2010 for the award of service connection for mood disorder have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 5. The criteria for an effective date earlier than April 29, 2016 for the assignment of a 10 percent disability evaluation for radiculopathy, left lower extremity have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 6. The criteria for an effective date earlier than April 29, 2016 for the assignment of a 10 percent disability evaluation for radiculopathy, right lower extremity have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.159, 3.326 (2017). The Veteran and his representative have not raised any argument(s) with respect to the adequacy of notice and assistance. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the appeal may be considered on the merits. Rating Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is an equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the two evaluations shall be applied, the higher evaluation 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. Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); see Hart v. Mansfield, 21 Vet. App. 505 (2007). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Mood Disorder The Veteran's mood disorder is currently rated at 30 percent and the Veteran and his representative contend that a 70 percent rating is warranted. The Board notes that any psychiatric disorder is rated under the General Rating Formula for Mental Disorders, and the criteria under this formula shall be considered no matter what diagnostic code is assigned. Here, because DC 9435 contemplates the Veteran's diagnosis of a mood disorder and his psychiatric symptoms, the Board concludes that the Veteran is appropriately rated under DC 9435. The General Rating Formula for Mental Disorders provides that mental disorders are to be rated under 38 C.F.R. § 4.130 as follows: A 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with normal retinue behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often,) chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened effect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or name. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In rating the severity of the Veteran's service-connected psychiatric disability under the criteria listed above, the Board is aware of the fact that psychiatric health care providers have their own system for rating psychiatric disability. This is the Global Assessment of Functioning (GAF) rating scale, and it is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM- IV); Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV). The GAF scale score assigned does not determine the disability rating VA assigns, however, it is one of the medical findings that may be employed in that determination, and it is highly probative, as it relates directly to the Veteran's level of impairment of social and industrial adaptability. Massey v. Brown, 7 Vet. App. 204, 207 (1994). Effective March 19, 2015, VA adopted as final, without change, an interim final rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders. The interim final rule replaced outdated references with references to the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) and updated the nomenclature used to refer to certain mental disorders in accordance with DSM-5. Specifically, the rulemaking amended 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, and 4.130. Where relevant, reported GAF scores in medical records prior to this date were included. The Veteran filed the claim in June 2010. The Veteran had numerous depression screenings throughout the period on appeal. These will only be focused on when they contain unusual information, otherwise they are consistent with their stated findings of moderate to moderately severe depression. The Veteran denied depression in depression screenings prior to early 2010 in VA treatment records, with a notation of "slight depression and mood changes" in January 2010. A May 2010 VA treatment records noted depression screening results, "suggestive of moderately severe depression." The Veteran was diagnosed with dysthymic disorder. In July 2010, the Veteran went to the emergency room, due to difficulty getting mental health appointment. The Veteran reported being depressed, overwhelmed, with insomnia, and trouble concentrating. The Veteran reported having a good family support system, but was unemployed. Assessment was adjustment disorder with depressed mood and depressive disorder, not otherwise specified ( NOS). GAF score was given as a range, 61 to 70. The VA emergency room nursing assessment noted the Veteran "endorses depression, lack of energy, poor sleep and inability to work due to back problems." A VA mental health initial assessment the same month noted "worsening depression sx's and possible panic attacks." The Veteran had depressed mood all day, nearly every day, sleep difficulties (early and middle insomnia), significantly diminished interest in activities, feelings of guilt/worthlessness, as well as difficulty concentrating ("my mind wanders extremely"), low energy, the Veteran denied any current suicidal or homicidal ideation, but reported previous, passive suicidal ideation without intentionality or plan. The Veteran also indicated anxiety, "nervous breakdowns" (lasting a minute to 10 minutes") chest pain/tightness, and crying spells. The Veteran had audio, but no visual, hallucinations. The Veteran reported social isolation and staying at home. Mood was largely euthymic, with affect incongruent with stated mood, somewhat inappropriate or restricted at times. GAF score was given as 51 with an assessment of "MDD, single episode without psychotic features, anxiety disorder NOS. Another VA mental health consultation reported feelings of worthlessness and panic attacks. Assessment was major depression. An August 2010 VA treatment medical health note reported being "on edge most of the day," easy frustration, issues with home life, arguing with his wife, low energy, and that he was unemployed. Assessment was "major depression moderate to severe without psychosis and anxiety disorder NOS." GAF score was 55. A November 2010 VA treatment record noted that the Veteran had daily depression, including expressing vague thoughts of suicide and had depression, irritability, and very poor sleep (about half an hour a night). The treating doctor reported the Veteran's mental status was alert and he was clean, well groomed, and cooperative. He had normal speech, insight, and judgment. Thoughts were linear but focused on predominantly negative themes, with no hallucinations or delusions and no active suicidal and homicidal ideations. Mood was described as depressed to irritable with affect negative, constricted, and irritable. The Veteran reported mood being "up and down, from fine to depressed." There are several administrative or miscellaneous notations related to depression in 2011, but the Veteran apparently stopped treatment at this time, until 2014. In December 2011, Dr. F. provided a private medical opinion regarding the Veteran's mood disorder. Dr. F. spoke with the Veteran by telephone, reviewed the claims file, and carried out a mental status evaluation, including social, medical, and psychiatric/substance/legal history. Dr. stated that the Veteran reported the following symptoms: poor energy level, considerable anxiety with panic attacks at times, difficulty in focus and concentration on tasks for long periods. The Veteran reported that he is easily distracted and reduced interest in socializing. The Veteran had depression and loss of confidence in himself, often feels hopeless, and occasionally had suicidal thoughts. The Veteran reported issues with sleep, low motivation, but good appetite and good memory and no difficulty with judgement or insight. He had no communications or cognitive deficits. The Veteran was diagnosed with major depressive disorder, moderate, without psychosis. GAF score was 50. Dr. F attached a medical opinion regarding the Veteran's ability to work. The Veteran was noted to be self-employed as a pressure washer. Dr. F. noted missing or leaving early 3 days per month due to mental problems and 2-3 days per month having issues with focus for 7 out of 8 hours in a workday. The Veteran was noted to respond angrily to criticism more than once per month. Accompanying examination notes, dated from September 2011 to December 2011, reported dysthymic disorder with objective symptoms of anxiety, relationship stress, anger, identity, self-esteem/efficacy issues, depression, grief, pain and limited physical capacity. Mood was noted as dysphoric or "mad, depressed, inferior, frustrated, rejected, confused, [and] discouraged," with a flat affect or congruent/blunted affect, and that the Veteran was compliant with medications. In a November 2013 VA examination, the examining psychologist noted the Veteran had a mood disorder due to chronic pain. The Veteran reported general malaise, lack of energy, social disengagement, and intermittent sleep disturbances. GAF score was 69. The Veteran denied any performance problems at work or difficulty with supervisors or co-workers. A mental condition was formally diagnosed, but symptoms were noted as not severe enough either to interfere with occupational and social functioning or to require continuous medication. The examiner reported a review of the Veteran's VA records and Dr. F.'s opinion. The examiner noted the Veteran worked as a truck driver. The Veteran denied suicidal or homicidal ideation, along with auditory or visual hallucinations. The Veteran's symptoms were disturbances of motivation and mood, chronic sleep impairment, and depressed mood, with no other symptoms. The examiner found that the symptoms were not severe enough either to interfere with occupational and social functioning or require continuous medication. A July 2014 VA mental health diagnostic study (DBI-II) note indicated moderate depression, endorsing either all questions with either a 1 point or 0 point, except for "I feel like crying, but I can't (3 points)" and 2 points for "I have lost most of my interest in other people or things" and "I sleep a lot more than usual," indicating more severe depression symptoms. A September 2014 VA treatment records noted affect is congruent with mood. The Veteran reported anhedonia and depressed mood more than half the time. The Veteran reported sleeping 6 hours a night. The Veteran denied other symptoms, including suicidal ideation or plans, and was otherwise assessed with a normal mental status examination. The Veteran was employed and was married with children. The Veteran denied symptoms of panic, mania/hypomania, obsessions/compulsions, unusual preoccupations, delusions, or perceptual disturbances, and demonstrated no evidence of such during the course of the assessment. The Veteran's other reports on mental health status examination were otherwise normal. An October 2016 VA nurse triage note reported moderately severe depression, with feelings of little interest or pleasure daily, feeling down or depressed or hopeless daily, sleeping issues nearly daily, feeling tired daily, poor appetite or overeating several days, trouble concentrating for several days, "moving or speaking so slowly that other people could have noticed. Or, being so fidgety or restless that you have been moving around a lot more than usual." These symptoms made it very difficult to work, take care of things at home, or get along with other people. February 2017 VA primary care notes report continued depression with lack of sleep, but that he had stopped taking medications. A February 2017 depression screen note the Veteran had no thoughts of suicide or suicide attempts, no feelings of hopelessness, and no recent thoughts about harming others. A February 2017 mental health initial evaluation note reported situational stress, including a divorce and employment issues. The Veteran described "sadness, pessimism, sense of failure, loss of interest and pleasure, guilty feelings, self-disappointment, self-criticism, restlessness/agitation, indecisiveness, diminished self-worth, diminished energy, irritability, inadequate motivation, and concentration problems." Veteran denied hospitalizations, but was noted to have a "complex h[istory] of psychotropic trials." Mood was dysphoric, but otherwise patent presented as good or normal. The Boards that the current 30 percent rating is warranted for the period on appeal. The Board considered all of the above lay statements and they are competent and credible to report the Veteran's lay observable symptoms of mood disorder and are entitled to probative weight, including those statements regarding feelings of depression, crying, sleep impairment, agitation, guilty feelings, loss of interest in daily activities, problems concentrating, and the other issues reported by the Veteran in his examination, treatment records, and other evidence submitted supporting his claim. The September 2014 Notice of Disagreement stated that, based on Dr. F's report, the Veteran's low motivation, inability to establish or maintain effective relationships, suicidal thought, social impairment, panics attacks, and disturbance of motivation warranted a 70 percent rating. The Board notes that, in fact, the private examination, VA treatment records, and VA examination are largely consistent with each other, although the Veteran's symptoms seem to be worse some days, as he the Veteran himself described. However, the Board places less probative weight on Dr. F's assessment of the severity as it does not correlate with a corresponding level of occupational and social impairment. The Veteran was able to continue to work and had a family relationship at the time of the telephone examination. The Veteran symptoms are, as described in the VA examination, principally disturbances of motivation and mood, chronic sleep impairment, and depressed mood. The Veteran also reported and was noted to have anxiety. The Veteran had had occasional flat affect, but did not have circumstantial, circumlocutory, or stereotyped speech. The Veteran at one point indicated that he had panic attacks, but did not give a frequency, with Dr. F. only noted that they occurred "at times" and VA notation that the Veteran "possibly" had panic attacks. The Veteran denied panic attacks in later medical documents. The Veteran's judgment, understanding, and memory were noted as good or normal. The Veteran occasionally reported somewhat vague suicidal thoughts, but also later denied suicidal ideation and there was never any indication of the need for intervention In any event, the passive suicidal thoughts have not resulted in occupational and social impairment. The Board also places probative weight on the evidence that the Veteran did not engage in any form of regular mental health treatment and was not prescribed or using any medication. The Veteran's mood disorder is manifested by symptoms resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with normal retinue behavior, self-care, and conversation normal). While a mental health disorder has been diagnosed, the symptoms are not severe enough to more than mildly interfere with either occupational or social functioning. The main dissimilarity between the medical documents seems to be the Veteran's GAF scores, ranging from a low of 50 to a high of 69 or 70 (depending on how the GAF score range 61-70 is read). A majority of the scores seem to towards the lower end of the 50s, but over 50 (with only one reading at 50) consistent with "moderate symptoms" or "moderate difficulty in social, occupational, or school functioning." As the Veteran reported having family relationships, although with some family difficulties, and managed to maintain employment through the majority of the period on appeal as either a pressure washer or truck driver. Therefore, the GAF scores in that range are consistent with the evidence. In sum, the medical and lay evidence does not reflect occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened effect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. Based on the weight of the evidence, the Board finds that the manifestations of the Veteran's depression do not warrant a rating in excess of the current 30 percent rating. The nature, severity, frequency, and duration of these manifestations do not warrant a rating in excess of 30 percent. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9435. The Board has not limited its review to the specific examples given in the rating criteria to find that a higher rating is not warranted but rather considered the overall sustained level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. The evidence that is considered in determining whether new and material evidence has been submitted is that evidence received by VA since the last final disallowance of the Veteran's claim on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). Regardless of whether the RO reopened a claim, it is a jurisdictional requirement that the Board reach its own determination as to whether new and material evidence has been presented. The Board is required to consider the issue of finality prior to any consideration on the merits. 38 U.S.C. §§ 5108, 7104(b); see Barnett v. Brown, 8 Vet. App. 1 (1995). Sexual Dysfunction A January 2011 Rating Decision listed the relevant evidence considered, VA treatment records, and the Veteran's statements as well as a January 2010 VA examination. The January 2011 Rating Decision noted that the January 2010 VA examination and other evidence did not show erectile dysfunction, genital trauma, or erectile dysfunction. The Veteran declined a physical examination. The examiner reported that there was no pathology to warrant a diagnosis. The Veteran was notified that his claim for sexual dysfunction was denied in a February 2011 letter. The rating decision denied the Veteran's claim as the Veteran did not have a disability associated with sexual function. The Veteran did not file a notice of disagreement for the denial of service connection and no new and material evidence was received within the one-year appeal period. Thus, the decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.1103. In essence, the claim was denied as there was no evidence of a post-service disability. The Veteran filed the current claim in April 2016 for "sexual discomfort." The Veteran, in a separate document dated February 2017, noted "extreme discomfort having sex" and "issues with my bow[e]ls." The RO reviewed the Veteran's medical records received after February 2011, including VA and private treatment records and a VA contractor examination with pertinent findings relevant to sexual dysfunction. In an August 2016 Rating Decision and a March 2017 SOC, the RO found that the Veteran still had not submitted evidence of a disability associated with sexual dysfunction. The Board concurs with this assessment, there is no new evidence The Veteran originally claim was denied in a rating decision based on the Veteran not having a disability associated with sexual dysfunction. After review of the new evidence submitted by the Veteran, the Board finds that the Veteran still has not submitted evidence showing a disability. Although the threshold to reopen is low, such a threshold is not met in this case and the benefit-of-the-doubt doctrine is not for application. See Shade, 24 Vet. App. at 118. The application to reopen the claim is denied in the absence of new and material evidence. Effective Date The Veteran asserts that an earlier effective date for service connection for disabilities (mood disorder and bilateral lower extremity radiculopathy) should be awarded. Notably, neither the Veteran nor his representative identified a specific earlier effective date or reasons why any should be assigned. Generally, the effective date for an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. If service connection is granted based on a claim received within one year of separation from active duty, the effective date will be the day following separation. Id. Although a claimant need not identify the benefit sought "with specificity," see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the Veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). See also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995) (noting that while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant). The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a Veteran's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations" Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). Mood disorder The Veteran submitted a claim for depression, dated June 2010, on a VA Form 21-526(b) Supplemental Claim. This claim was subsequently granted, effective June 29, 2010 (the date of receipt of the claim), as a mood disorder. There is no prior claim or document reporting depression or another mental health disorder. The only mention of a mental health disorder in other documents are denials of depression through and prior to early 2010 in VA treatment records, with a notation of "slight depression and mood changes" in January 2010. A May 2010 VA treatment record reported a depression screening, showing results "suggestive of moderately severe depression." A May 2010 VA primary care note noted this was a new diagnoses although had "symptoms for y[ea]rs, but never discussed." There was no other evidence to consider prior to May 2010, including any type of claim. The law is clear that no benefit may be paid before a claim is made. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Therefore, since the Veteran's service connection claim was received more than one year after his separation from military service, the effective date of the award may be no earlier than the date of receipt of the claim. Accordingly, since there is no evidence that shows a claim for service connection earlier than June 29, 2010, the effective date claim is denied. Bilateral Lower Extremity Radiculopathy As to the Veteran's effective date claims for his lower extremity radiculopathy. The Veteran was granted service connection for radiculopathy in April 2016, after submitting a claim on a Fully Developed Claim, VA 21-526EZ Form, signed April 2016. On his August 2016 Notice of Disagreement, the Veteran contended he was entitled to an earlier effective date. The Veteran filed a claim for lower extremity issues, described as numbness, in September 2009. He described the pain in medical records at this time as "radiating" or "radicular." The Veteran, in a May 2010 VA treatment note, reported he had been diagnosed with peripheral neuropathy. The examiner, referencing prior VA notes, noted "radicular symptoms to r[ight] leg for a while." In a June 2010 rating decision, the Veteran's claim for lower extremity numbness was denied. The rating decision noted abnormal December 2009 EMG study which found "electro diagnostic evidence of sensormotor peripheral neuropathy in the lower extremities only, mixed demyelmating (sic) and axonal. There was no electro diagnostic evidence of left or right tibial or peroneal mononeuropathy peripheral polyneuropathy (upper extremities not involved) or right L2 S2 radiculopathy (including no L3 radiculopathy). The RO scheduled several follow-up examinations to further investigate the cause of the neuropathy, but the Veteran did not appear for the examinations. The RO cited an opinion by a VA examiner that the lower extremity neuropathy was not caused by the lumbar spine degenerative disc disease but did not provide the date of the opinion. In June 2010, the Veteran expressed his disagreement with this rating decision. The Veteran was sent an SOC dated November 29th, 2011, with an attached VA Form 9, and was notified that the Veteran had 60 days to file from that date (approximately early February 2012). As one year from June 2010 rating decision had already lapsed, February 2012 was the deadline to file the VA Form 9. The Veteran did not file the attached VA Form 9 to perfect the appeal. After a SOC has been furnished, appellate review of an RO's rating decision is satisfied by the claimant filing a timely Substantive Appeal. 38 C.F.R. § 20.200. If the claimant's Substantive Appeal is not received by the RO within 60 days from the date that the SOC is mailed or within the remainder of the one-year period from the date that the notification of the rating decision was mailed, then the underlying rating decision "shall become final and the claim will not thereafter be reopened or allowed," except as otherwise provided in applicable statutes and regulations. 38 U.S.C. § 7105; 38 C.F.R. § 20.302. In this case, the Veteran did not file a VA Form 9 and the claim became final. Thus, there is no correspondence or pleading which, even liberally interpreted, can be construed as a Substantive Appeal which would have perfected an appeal in this matter. In December 2010, the Veteran appeared for a VA contract examination. The examiner noted the Veteran's report of radiating pain to the lower extremities but found no clinical evidence of peripheral neuropathy and normal sensory, motor, and reflex functions. In April 2016, the Veteran made a new claim for lower extremity neuropathy, which was treated as a claim for service connection for neuropathy and not as a claim to reopen the previously denied claim for numbness and feet. In a July 2016 VA back examination, the Veteran was noted to have radiculopathy. The claim was subsequently granted effective in April 2016, on the date the Veteran submitted the claim. As the Veteran never sent the appropriate VA Form 9 after making a claim for "numbness" of the lower extremity after the Veteran noted generic symptoms in his claim. The claim became final at that time. The Veteran never submitted a substantive appeal in response to the previous denial. The Veteran contentions regarding an earlier effective date, therefore, must be denied. Accordingly, the Board finds the above dates are the appropriate effective dates for the award of service connection. 38 U.S.C. § 5110A (a) (2012); 38 C.F.R. § 3.400 (2017). As there is no basis for assignment of any earlier effective dates, and because the preponderance of the evidence is against the claim for any earlier effective date, the claim must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an increased disability rating in excess of 30 percent for mood disorder due to chronic pain is denied. The application to reopen the claim for service connection for sexual dysfunction is denied. Entitlement to an effective date earlier than June 29, 2010, for the award of service connection for mood disorder is denied. Entitlement to an effective date earlier than April 29, 2016 for the assignment of a 10 percent disability evaluation for radiculopathy, right lower extremity is denied. Entitlement to an effective date earlier than April 29, 2016 for the assignment of a 10 percent disability evaluation for radiculopathy, left lower extremity is denied. REMAND As to the claim for service connection for sleep apnea, the Veteran was diagnosed by a private physician with sleep apnea at least by June 2017, with sleep apnea having been manifested for several years. A July 2014 VA treatment record also indicates a diagnosis of sleep apnea in March 2014. The Veteran has claimed he has had trouble with sleep since at least 2010 (when he filed a claim), which may be sleep apnea. The Veteran has not had an examination for sleep apnea and, to establish etiology, one is needed to decide this claim. As to the increased ratings claims, the Veteran is currently rated under Diagnostic Code 5235-5243, IVDS status-post fracture, L-3 and degenerative disc of the lumbar spine. The rating is based on range of motion testing undertaken by a VA examiner in June 2016. During the pendency of the appeal and following the most recent VA examination, the United States Court of Appeals for Veterans Claims (Court) held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). 38 C.F.R. § 4.59 (2017) states that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." As such, pursuant to Correia, an adequate VA joints examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions and, where possible, on the opposite joint. As this was not done, a new examination is required. The grant of the Veteran's bilateral lower extremity radiculopathy caused the RO to changed diagnostic codes in order to grant and separately evaluated left and right radiculopathy. The claims for higher ratings for the Veteran's IVDS and these issues are inextricably intertwined with the appropriate rating for the Veteran's lumbar spine disability, these issues are also remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any outstanding and relevant VA treatment records. 2. Schedule the Veteran for appropriate VA examination for his sleep apnea claim. The claims file should be provided to the appropriate examiner for review. The examiner is to undertake any studies deemed necessary. The examiner should render an opinion as to whether it is at least as likely as not that (i.e., a probability of 50 percent or greater) that the Veteran's diagnosed sleep apnea disability: (a) was incurred in or is otherwise related to his active service or (b) aggravated by a service-connected disability or disabilities. 3. Schedule the Veteran for a VA examination for his thoracolumbar spine. The claims folder must be made available to the examiner and pertinent documents should be reviewed by the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. Request that the examiner provide an assessment of the severity of the thoracolumbar spine that includes examination and range of motion testing in weight-bearing, and nonweight-bearing, passive and active ranges of motion testing of the right knee and the opposite joint. The examiner must also comment on any reported incapacitating events that warranted bed rest and treatment ordered by a physician and an assessment of current radiculopathy and incomplete paralysis associated with any neuropathy of the bilateral lower extremities. The examiner should be asked to note any additional functional loss, including in terms of additional degrees of limitation of motion (to the extent feasible) due to any weakened movement, excess fatigability, incoordination, or pain on use. If flare-ups are noted, the examiner should likewise note any additional functional limitation. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 4. Readjudicate the claims. If any benefits sought remain denied, the AOJ should provide the Veteran and the representative a Supplemental Statement of the Case 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. §§ 5109B, 7112 (2012). ______________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs