Citation Nr: 1801123	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  12-30 752A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Whether the Veteran filed a timely Notice of Disagreement (NOD) with an October 2008 rating decision denying service connection for erectile dysfunction.  

2.  Whether new and material evidence has been received to reopen the claim of service connection for erectile dysfunction (impotence).

3.  Whether new and material evidence has been received to reopen the claim of service connection for bowel dysfunction.

4.  Whether new and material evidence has been received to reopen the claim of service connection for pes planus.

5.  Entitlement to service connection for a left shoulder disability.

6.  Entitlement to service connection for frostbite of the bilateral feet.

7.  Entitlement to service connection for limitation of extension of the left leg.

8.  Entitlement to a rating in excess of 20 percent prior to June 1, 2009 and in excess of 40 percent thereafter for lumbar strain with degenerative changes at multiple levels (excluding periods during which a 100 percent rating was in effect).  

9.  Entitlement to an initial compensable rating prior to July 7, 2008, in excess of 40 percent from July 7, 2008 to February 13, 2012, and in excess of 60 percent from February 14, 2012, for neurogenic bladder.

10.  Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy prior to September 11, 2008. 

11.  Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy prior to September 11, 2008.

12.  Entitlement to a higher rate of special monthly compensation (SMC) based on loss of use of the bilateral lower extremities.

13.  Entitlement to an effective date earlier than November 27, 2006 for the grant of service connection for neurogenic bladder.

14.  Entitlement to an effective date earlier than September 11, 2008 for the award of a 100 percent rating for loss of use of the bilateral lower extremities, previously evaluated as right and left lower extremity radiculopathy.  

15.  Entitlement to an effective date earlier than September 11, 2008 for the grant of special monthly compensation based on loss of use of the bilateral lower extremities.

16.  Entitlement to a temporary total evaluation for toe surgery pursuant to 38 C.F.R. §§ 4.29 and 4.30 based on surgical treatment requiring convalescence.  

17.  Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance. 


REPRESENTATION

Veteran represented by:	Adam Neidenberg, Attorney


ATTORNEY FOR THE BOARD

C. Jones, Counsel


INTRODUCTION

The Veteran served on active duty from July 1979 to July 1982.

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  

The Board observes that in multiple substantive appeals submitted by the Veteran, he requested a Board videoconference hearing.  In conformance with his request, a hearing was scheduled in September 2017.  In correspondence received in August 2017, however, the Veteran's attorney requested that the scheduled hearing be cancelled.  He indicated that the Veteran did not wish to reschedule it.  In light of the foregoing, the Board determines that the request for a hearing has been withdrawn.  Thus, the Board will proceed with consideration of the appeal based on the evidence of record.  38 C.F.R. § 20.704(e) (2017).  

In his August 2017 correspondence, the Veteran's attorney requested that this matter be held open for a period of 60 days to allow him the opportunity to submit a brief and additional evidence.  That brief and additional evidence was received in September 2017, along with a waiver of initial RO consideration.  The brief, however, addressed only the issue of entitlement to SMC based on the need for regular aid and attendance.  The Veteran's attorney has submitted no argument with respect to the remaining issues on appeal.  

The Board notes that in April 2009, the RO drafted a rating decision adjudicating a number of issues.  According to subsequent correspondence in the record between the RO and the Veteran's congressional representative, that rating decision was in error and was never promulgated, although the Veteran's representative at the time apparently obtained a copy of it.  In subsequent correspondence received in 2012, the Veteran's attorney argued that the April 2009 rating decision should be enforced as to the award of a 100 percent rating for a bilateral lower extremity disability, effective September 11, 2008.  

In a September 2012 determination letter, the RO again explained that the April 2009 rating decision was erroneous and that because an award letter with appeal rights was not mailed to the Veteran regarding the April 2009 rating decision, it was unappealable and the Veteran's "notice of disagreement" with that rating decision could not be accepted.  In October 2012, the Veteran filed a notice of disagreement with the September 2012 determination letter.  The Board notes that in general, when a notice of disagreement is received on an issue and no statement of the case follows, the appropriate recourse is to remand the matter for development per Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).  Here, however, the record on appeal reflects that the Veteran has since been awarded a 100 percent rating for loss of use of the bilateral lower extremities, effective September 11, 2008.  Thus, no further action is necessary.  

The issues of entitlement to service connection for erectile dysfunction and bowel dysfunction, entitlement to an increased rating for a lumbar spine disability, entitlement to initial ratings in excess of 10 percent for radiculopathy of the left and right lower extremities, and entitlement to a higher rate of SMC are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDINGS OF FACT

1.  In an October 2008 rating decision, the RO determined that new and material evidence had not been received to reopen the previously denied final claim of service connection for impotence (erectile dysfunction).  Although the Veteran was notified of the RO's determination and his appellate rights in an October 2008 letter, his notice of disagreement with the decision was not received by VA until March 2010.  

2.  The evidence received since the final October 2008 rating decision denying service connection for impotence includes medical evidence which relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim.

3.  In an October 2008 rating decision, the RO determined that new and material evidence had not been received to reopen a previously denied claim of service connection for bowel dysfunction.  Although the Veteran was notified of the RO's decision and his appellate rights in an October 2008 letter, he did not perfect an appeal within the applicable time period.  

4.  The evidence received since the final October 2008 rating decision denying service connection for bowel dysfunction includes medical evidence which relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim.

5.  In an October 2010 rating decision, the RO denied service connection for pes planus.  Although the Veteran was notified of his appellate rights in an October 2010 letter, he did not perfect an appeal within the applicable time period.

6.  The evidence received since the final October 2010 rating decision denying service connection for pes planus is duplicative, cumulative, or does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim.  

7.  The Veteran's left shoulder disability did not manifest in service or to a compensable degree within one year thereafter and is not otherwise related to the Veteran's active service or any incident therein.  

8.  Frostbite of the bilateral feet has not been present at any time during the period on appeal.

9.  A disability manifested by limitation of extension of the left leg has not been present at any time during the period on appeal.

10.  The Veteran's toe surgery was not for a service-connected disability.

11.  Prior to July 7, 2008, the Veteran's neurogenic bladder was manifested by complaints of urgency and incontinence; it did not require the wearing of absorbent materials which must be changed less than 2 times per day.

12.  For the period from July 7, 2008, to February 13, 2012, the Veteran's neurogenic bladder required the wearing of absorbent materials which must be changed 2 to 4 times per day; it did not require the use of an appliance or the wearing of absorbent materials that must changed more than four times per day.

13.  From February 14, 2012, the Veteran's neurogenic bladder requires the wearing of absorbent materials that must be changed more than 4 times per day; there was no evidence of renal dysfunction.

14.  On November 27, 2006, the Veteran submitted VA treatment records noting treatment for neurogenic bladders; his petition to reopen the previously denied final claim of service connection for a bladder disability was received by VA on December 15, 2006.

15.  Prior to September 11, 2008, the Veteran did not meet the criteria for a 100 percent rating for radiculopathy of the bilateral lower extremities.

16.  Prior to September 11, 2008, the Veteran did not meet the criteria for an award of special monthly compensation based on loss of use of the bilateral lower extremities.

17.  The Veteran is in need of regular aid and attendance by reason of his service-connected disabilities.


CONCLUSIONS OF LAW

1.  The Veteran's Notice of Disagreement with an October 2008 rating decision denying service connection for erectile dysfunction was not timely.  38 U.S.C.§§ 5107, 7105 (2012); 38 C.F.R. §§ 20.201, 20.302 (2017).

2.  The October 2008 rating decision denying service connection for erectile dysfunction is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 19.129, 19.192 (2017).

3.  New and material evidence has been received to warrant reopening of the claim of service connection for impotence, now claimed as erectile dysfunction.  38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017).

4.  The October 2008 rating decision denying service connection for bowel dysfunction is final.  38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 19.129, 19.192 (2010).

5.  New and material evidence has been received to warrant reopening of the claim of service connection for bowel dysfunction.  38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017).

6.  The October 2010 rating decision denying service connection for pes planus is final.  38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 19.129, 19.192 (2010).

7.  New and material evidence has not been received to warrant reopening of the claim of service connection for pes planus.  38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017).

8.  The criteria for service connection for a left shoulder disability have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

9.  The criteria for service connection for frostbite of the bilateral feet have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

10.  The criteria for service connection for limitation of extension of the left leg have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

11.  The criteria for a temporary total evaluation for a toe surgery have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.49, 4.30 (2017).

12.  The criteria for an initial compensable rating prior to July 7, 2008, in excess of 40 percent for the period from July 7, 2008 to February 14, 2012, and in excess of 60 percent thereafter for neurogenic bladder have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.21, 4.115a, 4.115b, Diagnostic Code 7542 (2017).

13.  The criteria for an effective date earlier than November 27, 2006 for the grant of service connection for neurogenic bladder have not been met.  38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2017).

14.  The criteria for an effective date earlier than September 11, 2008 for the award of a 100 percent rating for loss of use of the bilateral lower extremities, previously evaluated as right and left lower extremity radiculopathy, have not been met.  38 U.S.C. §§ 1155, 5101, 5107, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2017).

15.  The criteria for an effective date earlier than September 11, 2008, for the grant of special monthly compensation based on loss of use of the bilateral lower extremities have not met.  38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2017).

16.  The criteria for special monthly compensation based on the need for regular aid and attendance of another person have been met.  38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.350, 3.352 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist.  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).

Timeliness of Notice of Disagreement for Denial of Service Connection for Erectile Dysfunction

An appeal to the Board is initiated by a notice of disagreement and completed by a substantive appeal after a Statement of the Case is furnished.  See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2017). 

Where the agency of original jurisdiction provides no form for purpose of initiating an appeal, a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination and a desire to contest the result will constitute a notice of disagreement.  The notice of disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review.  38 C.F.R. § 20.201(b) (2017). 

A claimant, or his or her representative, must file the notice of disagreement with a determination by the agency of original jurisdiction within one year from the date that that agency mails notice of the determination to him or her.  Otherwise, that determination will become final.  The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed.  38 C.F.R. § 20.302 (2017). 

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b).  Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b) (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The record shows that the Veteran's original claim of service connection for impotence was denied in an October 1999 rating decision.  The Veteran was duly notified of the RO's determination and his appellate rights in an October 1999 letter, but he did not submit a notice of disagreement within the applicable time period.  Neither the Veteran nor his attorney has argued otherwise.  

Thereafter, in December 2006, the Veteran again filed a claim of service connection for impotence (erectile dysfunction).  The claim was denied in a December 2007 rating decision.  Again, the Veteran was notified of the RO's determination and his appellate rights in a December 2007 letter, but he did not submit a notice of disagreement within the applicable time period.

The Board notes that in May 2008, the Veteran telephoned the RO and indicated that he wished to request an increased in compensation for his low back as he was experiencing symptoms such as an increase in radiating pain which had caused him to develop additional problems including erectile dysfunction.  

In an October 2008 rating decision, the RO determined that new and material evidence had not been received to reopen the previously denied claim of service connection for erectile dysfunction.  The RO noted that the additional evidence received was not new and material as it did not show treatment for erectile dysfunction associated with his service-connected low back disability.  

The Veteran was notified of the RO's determination and his appellate rights in an October 2008 letter.  He did not submit a notice of disagreement within the following year.  The Board has been unable to identify any document which may be construed as a notice of disagreement and neither the Veteran nor his attorney has pointed to any such document.  

In March 2010, the Veteran submitted a notice of disagreement with the denial of service connection for erectile dysfunction.  In a September 2012 letter, the RO advised the Veteran that his notice of disagreement was untimely.  The Veteran's attorney appealed the RO's determination on behalf of the Veteran.  Unfortunately, he provided no evidence or argument in support of the appeal; thus, his theory of entitlement to the benefit sought here is unclear.  

After a review of the evidence, the Board finds that the Veteran did not submit a timely notice of disagreement with the October 2008 rating decision determining that new and material evidence had not been received to reopen the previously denied claim of service connection for erectile dysfunction.  As delineated above, the record on appeal contains no indication that the Veteran submitted any communication which may be construed as a notice of disagreement within one year of notification of the October 2008 rating decision and neither he nor his attorney have pointed to any such document.  

Although not raised by the Veteran or his attorney, the Board has considered whether the Veteran's May 2008 claim can be construed as a notice of disagreement with the December 2007 rating decision denying service connection erectile dysfunction.  The Board concludes that it cannot.  First, the communication is not in writing; rather, the Veteran telephoned the RO in May 2008.  Moreover, the record of that call does not indicate that the Veteran was expressing dissatisfaction or disagreement with with December 2007 rating decision and a desire to contest the result.  Rather, he indicated that he wished to request an increased in compensation for his low back as he was experiencing symptoms such as an increase in radiating pain which had caused him to develop additional problems including erectile dysfunction.  Based on the Veteran's stated intent, the Board finds that it was not a notice of disagreement, as defined by the applicable regulation and the RO properly treated the communication as a new claim.  


Petition to Reopen Previously Denied Service Connection Claims

In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final.  38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.1100, 20.1103 (2017).  Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.

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 (2017). 

To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance.  See Evans v. Brown, 9 Vet. App. 273, 285 (1996).  For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist.  Id. at 118.

Erectile Dysfunction

As noted, the Veteran's original claim of service connection for impotence, now claimed as erectile dysfunction, was denied in an October 1999 rating decision because, although the treatment records indicated that the Veteran may have degenerative disc disease which may have caused impotence, there was a no objective medical evidence to show a direct causal relationship between the Veteran's service-connected low back disability and his possible degenerative disc disease resulting in incontinence and impotence. 

The Veteran was notified of the October 1999 rating decision and his appellate rights in an October 1999 letter.  He did not appeal the RO's determination and no new and material evidence was received within a year of the issuance of the rating decision.  Neither the Veteran nor his attorney has specifically contended otherwise.  Thus, the RO's October 1999 rating decision is final and not subject to revision on the same factual basis.  See 38 U.S.C. § 7105(c) (1992); 38 C.F.R. §§ 3.104, 20.1103 (1999).  

The appellant thereafter sought reopening of his claim.  

In a December 2007 rating decision, the RO denied service connection for erectile dysfunction, including as secondary to the service-connected low back disability, finding that the record contained no evidence of a current diagnosis of erectile dysfunction related to the service-connected low back disability or military service.  

In June 2008, the Veteran submitted additional evidence in support of his claim, including a June 2008 private medical statement noting erectile dysfunction perhaps as a complication of lumbar radiculopathy and a June 2008 VA medical statement noting erectile dysfunction related to back pain.  

After considering the additional evidence in accordance with 38 C.F.R. § 3.156(b), in an October 2008 rating decision, the RO determined that it was not new and material warranting reopening of the claim of service connection for erectile dysfunction.  As set forth above, the Veteran failed to initiate a timely appeal of this decision.  Thus, it is final and not subject to revision on the same factual basis.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 19.129, 19.192 (2017).

In this appeal, the Veteran again seeks to reopen the previously denied claim of service connection for impotence, now claimed as erectile dysfunction.  As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

The evidence of record at the time of the last final rating decision in October 2008 rating decision included service treatment records and VA treatment records noting diagnoses of multiple chronic medical conditions, including erectile dysfunction.  Also of record was the report of a July 2007 VA genitourinary examination in which it was noted that the Veteran's erectile dysfunction is possibly from a cervical disc disease, spine disease, and voiding dysfunction.  

The additional evidence received since the final October 2008 rating decision includes clinical records noting continued complaints of erectile dysfunction of an organic origin as well as notations of lumbar disc disease with radiculopathy.  In an October 2012 rating decision, the Veteran was also awarded service connection for neurogenic bladder.  A June 2013 VA medical opinion indicates that the Veteran's erectile dysfunction was less likely than not proximately due to or the result of his service-connected lumbar spine disability.  

The Board has carefully considered the record, with particular attention to the additional evidence received since the final October 2008 rating decision.  After considering this additional evidence, the Board concludes that it is new and material warranting reopening of the claim of service connection for erectile dysfunction.  In this regard, the previous claim was denied because there was no objective medical evidence to show a direct causal relationship between the Veteran's service-connected low back disability and his possible degenerative disc disease resulting in incontinence and impotence.  The evidence associated with the record since that time includes clinical evidence suggesting multiple etiologies for the Veteran's erectile dysfunction.  As detailed herein, since the October 2008 rating decision, the Veteran has been awarded service connection for neurogenic bladder and the record contains clinical evidence suggesting a possible link between his erectile dysfunction and a neurogenic bladder.  The Board finds that the evidence received since the October 2008 rating decision relates to an unestablished fact necessary to substantiate the claim and would trigger VA's duty to provide a medical examination to determine if the Veteran's current erectile dysfunction is secondary to his service connected disabilities.  38 C.F.R. § 3.159(c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

Under these circumstances, the Board finds that new and material evidence has been received.  Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010).  Accordingly, the Board finds that the Veteran's previously denied claim of service connection for erectile dysfunction is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

Although the record is sufficient to warrant reopening of the claim, it is not sufficient to allow the grant of the benefit sought.  For reasons explained below, additional development is necessary before the Board may proceed with a decision on the merits.

Bowel dysfunction

In a December 2007 rating decision, the RO denied service connection for bowel dysfunction, including as secondary to the service-connected low back disability, finding that the record contained no evidence that the condition existed.  The Veteran was notified of the RO's determination and his appellate rights in a December 2007 letter.  

In June 2008, the Veteran submitted additional evidence in support of his claim, including a June 2008 private medical statement noting bowel dysfunction perhaps as a complication of lumbar radiculopathy and a June 2008 VA medical statement noting a bowel condition related to back pain.  

After considering the additional evidence in accordance with 38 C.F.R. § 3.156(b), in an October 2008 rating decision, the RO determined that it was not new and material warranting reopening of the claim of service connection for bowel dysfunction.  Although he was notified of the RO's decision and his appellate rights, the Veteran did not submit a notice of disagreement within the applicable time period.  He has not contended otherwise.  Thus, the decision is final and not subject to revision on the same factual basis.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 19.129, 19.192 (2017).

In this appeal, the appellant again seeks to reopen the previously denied claim of service connection for bowel dysfunction.  As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

The additional evidence received since the final October 2008 rating decision includes multiple pieces of medical evidence related to the Veteran's claimed bowel dysfunction.  In pertinent part, this additional evidence includes an October 2011 VA medical examination report in which the examiner noted that the Veteran exhibited bowel incontinence due to a thoracolumbar spine condition.  Given the basis for the prior denial, the Board concludes that this evidence is new and material warranting reopening of the claim of service connection for bowel dysfunction.  The Board finds that this evidence relates to an unestablished fact necessary to substantiate the claim and would trigger VA's duty to provide a medical examination to determine if the Veteran's current erectile dysfunction is secondary to his service connected disabilities.  38 C.F.R. § 3.159(c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

Under these circumstances, the Board finds that new and material evidence has been received.  Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010).  Accordingly, the Board finds that the Veteran's previously denied claim of service connection for bowel dysfunction is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

Pes Planus

The Veteran's claim of service connection for pes planus was denied in an October 2010 rating decision because there was no evidence of the claimed condition during active service.  Further, although post-service VA medical evidence demonstrated treatment for the claimed condition, there was no medical evidence that the condition is linked to a current service-connected disability or to active service.  

The Veteran was notified of the October 2010 rating decision and his appellate rights in an October 2010 letter.  He did not appeal the RO's determination and no new and material evidence was received within a year of the issuance of the rating decision.  He has not contended otherwise.  Thus, the RO's October 2010 rating decision is final and not subject to revision on the same factual basis.  See 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.1103 (2010).  

The Veteran now seeks to reopen the previously denied claim of service connection for pes planus.  As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

The evidence of record at the time of the October 2010 rating decision included service treatment records as well as VA treatment records noting a diagnosis of pes planus.  

The additional evidence received since the final October 2010 rating decision includes VA treatment records.  

After considering this additional evidence, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156 has not been received to warrant reopening of the claim of service connection for pes planus.  

In this regard, the Board observes that the additional post-service treatment records are new because they were not of record at the time of the October 2010 rating decision.  However, the evidence is not material because it does not relate to an unestablished fact necessary to substantiate the claims.  Specifically, the additional evidence does not show that the diagnosed pes planus is related to active service or to a service-connected disability.  Thus, the Board concludes that this evidence neither triggers VA's duty to assist nor raises a reasonable possibility of substantiating the claim.

For these reasons, the Board finds that the additional evidence received since the final October 2010 rating decision is not new and material within the meaning of 38 C.F.R. § 3.156(a).  Consequently, the Board finds that new and material evidence has not been received and the claim of service connection for pes planus is not reopened.  

Service Connection Claims

Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017).  

Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d) (2017).

Service connection for certain chronic diseases, including arthritis, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112, 1137 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307(a) (2017); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was noted during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b).

Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310 (a) (2017).  Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b).  Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b) (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Left Shoulder Disability

The appellant asserts that service connection is warranted for a left shoulder disability.  He contends that the condition is due to an in-service motor vehicle accident.  He reports that left shoulder pain has persisted since that time.

Service treatment records demonstrate that the Veteran was involved in a motor vehicle accident in March 1981 at which time he sustained injuries to his right ankle and lower back.  Following the motor vehicle accident, the Veteran was placed on a physical profile for his right ankle.  There was no report or finding of a left shoulder injury or disability.  In a record dated in July 1981, the Veteran reported back pain radiating up his spine to the shoulders.  In subsequent records dated from November 1981 to April 1982, the Veteran presented with complaints of lumbar pain due to the vehicle accident.  There were no further complaints of shoulder pain.  

The Board observes that the Veteran's original application for VA compensation benefits was received in December 1985.  At that time, he requested service connection for back and ankle conditions, which he indicated began in April 1981 following the motor vehicle accident.  His application is silent for any reference to a left shoulder disability, as is medical evidence received in connection with the claim.  

In pertinent part, more recent post-service medical records note complaints of left shoulder pain.  Notably, in a September 2007 private treatment record, it was reported that the Veteran's left shoulder disability started in March 2004.  In so finding, the physician noted that at that time, the Veteran had been lifting a tarp when he hurt his neck, left shoulder, and left arm.  Ultimately, he underwent neck surgery in February 2005, but nonetheless continued to have pain in the neck radiating to the shoulders.  On physical examination, it was noted that the Veteran had limitation of range of motion of the left shoulder.  The physician indicated that there may be some impairment, but it is difficult to tell.  Progress notes from the Veteran's treating physician received in May 2008 also indicate that the Veteran had a Worker's Compensation claim in March 2004 for injuries which included a left shoulder injury.

The Veteran was provided a VA examination in June 2008.  At that time, he reported that he had a number of problems which occurred subsequent to his in-service motor vehicle accident, which included a Workman's Compensation injury in 2004 where he sustained injured to his left shoulder while working as a truck driver.  A left shoulder disability was not assessed at that time.  

A September 2011 VA shoulder x-ray revealed tendinopathy without full thickness rotator cuff tear, AC joint degenerative changes, and mild subacromial subdeltoid bursitis.  The record, however, contains no suggestion that the identified conditions are related to the Veteran's military service.  

After a review of the evidence, the Board finds that the preponderance of the evidence is against the claim of service connection for a left shoulder disability.  

As set forth above, although service treatment records dated in July 1981 demonstrate complaints of back pain radiating into the shoulders, there was no diagnosis of a left shoulder disability during active service.  In fact, subsequent service treatment records are negative for further complaints of shoulder pain.  Moreover, although post-service treatment records identify current left shoulder disabilities, they do not suggest that the conditions are related to the Veteran's active service or any incident therein, to include the in-service motor vehicle accident.  Rather, the records suggest that the Veteran suffered a post-service left shoulder injury in 2004.  The Board observes that during the June 2008 VA examination, it was noted that the Veteran specifically reported that his left shoulder disability occurred subsequent to his period of active service.

The Board has considered the Veteran's recent contention that his left shoulder symptoms have persisted since active service.  Notwithstanding, the more probative evidence indicates that a left shoulder disability, or symptoms thereof, have not persisted on a continuous basis since service.  In that regard, the Board observes that in December 1985, when the Veteran submitted his original application for VA compensation benefits for disabilities he claimed to have incurred in the in-service accident, he mentioned a back disability and a left ankle disability only.  He did not mention a left shoulder disability and the contemporaneous medical evidence associated with the record at that time does not reveal complaints of a left shoulder disability.  The Board finds that had a left shoulder disability or chronic left shoulder symptoms been present since service, the Veteran would have requested service connection for the condition at that time.  Moreover, the Veteran would have mentioned his left shoulder symptoms at the time he was seeking treatment for his other conditions.  The Board finds that the recent statements made by the Veteran regarding the onset of left shoulder symptoms are less probative than the contemporaneous records.  

The Board also acknowledges the Veteran's assertion that his left shoulder disability is related to military service.  Although in some cases a layperson is competent to offer an opinion addressing the etiology of a disorder, the Board finds that, in this case, the determination of the origin of the left shoulder disability is a medical question not subject to lay expertise.  See Jandreua v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The condition involves pathological processes that are not readily observable to a layperson.  The Board finds that in light of the non-observable nature of the pathology, the issue of the origin of the diagnosed left shoulder disability is a medical question requiring medical training, expertise and experience.

In summary, the Board finds that the most probative evidence shows that a left shoulder disability was not present during active service.  The Board also concludes that the most probative evidence shows that the current left shoulder disabilities are not related to the appellant's active service.  For these reasons, the preponderance of the evidence is against the claims of service connection for a left shoulder disability.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Frostbite of the Bilateral Feet and Limitation of Extension of the Left Leg

The Veteran asserts that service connection is warranted for frostbite of the bilateral lower extremities and limitation of extension of the left leg.  

Service treatment records are negative for treatment for or diagnoses of frostbite of the bilateral feet or limitation of extension of the left leg.

Post-service treatment records are also negative for a diagnosis of frostbite of the bilateral feet.  The Veteran did not specifically identify a disability manifested by limitation of extension of the left leg.  However, the Board observes that radiculopathy of the bilateral lower extremities has been granted, currently rated at 100 percent disabling.  Special monthly compensation based on loss of use of the bilateral lower extremes has also been awarded.  The record contains no evidence of any additional disability resulting in limitation of extension of the left leg.  

After carefully considering the record on appeal, the Board finds that the record does not establish that the Veteran currently has frostbite of the bilateral feet or limitation of extension of the left leg, nor has he had the claimed conditions at any time during the appeal period.

As noted herein, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  See 38 U.S.C. § 1110; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998).

Again, the Board has carefully reviewed the record on appeal and can find no clinical indication that the Veteran currently has frostbite of the feet or limitation of extension of the left leg.  Moreover, the Board observes that the Veteran did not provide any argument in support of the claim.  The service treatment records are negative for diagnoses of the claimed conditions and the post-service medical records do not indicate a diagnosis of frostbite of the feet.  Again, the Veteran did not identify any disability which caused limitation of extension of the left leg or provide any argument in support of his claim.  Instead, the medical records note radiculopathy of the lower extremities, for which service connection and special monthly compensation for loss of use has been awarded.  The clinical evidence of record contains no indication that at any time following separation from military service has the Veteran been diagnosed as having frostbite of the feet or an additional left leg disability manifested by limitation of extension for which service connection has not been awarded.  

In appeals to the Board, claimants should allege specific errors of fact or law, see 38 U.S.C. § 7105(d)(5), and counsel are expected to present those arguments they deem material and relevant to their clients' cases.  See Barela v. Peake, 22 Vet. App. 155, 159 (2008) (noting that an attorney has the ethical duty to educate himself about the relevant law, analyze the factual and legal elements of a case, adequately prepare, and zealously represent his client's interest); see also Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005).  

In summary, the record on appeal contains no probative evidence that frostbite of the bilateral feet or a disability manifested by limitation of extension of the left leg have been present at any time since the filing of the Veteran's service connection claims.  The law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a current disability.  Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  Absent any indication that the Veteran currently has the claimed conditions, the Board finds that the preponderance of the evidence is against the claims.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Entitlement to a Temporary Total Evaluation for a Toe Surgery

A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at Department of Veterans Affairs expense for a service-connected disability for a period in excess of 21 days.  38 C.F.R. § 4.29.

Under 38 C.F.R. § 4.30, a total rating will be assigned effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following hospital discharge or outpatient release if the treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals; or (3) immobilization by cast, without surgery, of one major joint or more.

The medical evidence of record demonstrates that in October 2011, the Veteran underwent a left foot closing base wedge osteotomy with bunionectomy and hallux valgus correction.  

A review of the claims file indicates that service-connection has not been awarded for a toe disability.  Neither the Veteran nor his representative has argued otherwise.  

A threshold legal requirement for establishing entitlement to a temporary total rating under 38 C.F.R. §§ 4.29 and 4.30 is that the surgery must have been for a service-connected disability.  It is not in dispute that the Veteran underwent a surgery for his toe.  However, as indicated above, service connection has not been awarded for a disability of the toe.  Accordingly, the surgery in question was not for a service-connected disability and, therefore, the threshold requirement for benefits under §§ 4.29 and 4.30 are not met.  Absent specific argument from the Veteran or his representative, the Board is unable to identify any basis upon which this claim may be granted.  In Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), the Court held that where the law is dispositive, the claim should be denied because of lack of legal entitlement under the law.  Accordingly, the appeal in this matter must be denied.

Entitlement to an Increased Rating for a Neurogenic Bladder

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  

Where a claimant appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found.  Id. 

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

The Veteran's neurogenic bladder has been rated under Diagnostic Code 7542, which indicates that neurogenic bladder is to be rated as voiding dysfunction.  38 C.F.R. § 4.115b, Diagnostic Code 7542 (2017).

Pursuant to those rating criteria, a 20 percent rating contemplates leakage requiring the wearing of absorbent materials, which must be changed less than 2 times per day.  When there is leakage requiring the wearing of absorbent materials, which must be changed 2 to 4 times per day, a 40 percent disability rating is warranted. When these factors require the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day, a 60 percent evaluation is warranted.  38 C.F.R. § 4.115a.

VA treatment records dated from November 2006 to March 2007 note a history of neurogenic bladder.  

The Veteran was provided a VA genitourinary examination in July 2007.  According to the appellant, his urinary symptoms consisted of difficulty holding urine and wetting himself.  The examiner indicated that the symptoms were urgency and incontinence.  The Veteran also reported that it hurt if he held his urine, and occasionally, he had the urge to urinate and was unable to do so.  He stated the he was getting diapers at some point, however, the examiner reported that he was unsure when the Veteran was getting them.  He did not have hematuria.  For incontinence, the Veteran reported that he wets the bed and his pants and had worn diapers in the past.  Following physical examination, the examiner assessed urinary dysfunction and voiding dysfunction.  

VA urology records dated in January 2008 note that the Veteran presented for treatment for pyuria.  The Veteran underwent a flexible cystourethroscopy, which revealed normal results.  A May 2008 urology consultation revealed symptoms referable to the lower urinary tract.  

The Veteran underwent a VA spine examination in July 2008.  At that time, he reported having bladder and bowel problems and wearing diapers two times per day.  He also reported urgency within his bladder.  

In the report of a February 2009 VA spine examination, it was noted that the Veteran reported bladder complaints.  

The Veteran was provided a VA examination in February 2012 for his lumbar spine disability.  At that time, it was noted that the Veteran had difficulty controlling his bladder.  

The Veteran also underwent a VA urinary tract and bladder examination in February 2012.  It was noted that the Veteran had voiding dysfunction that required absorbent material which must be changed more than 4 times per day.  It did not require the use of an appliance.  The voiding dysfunction caused urinary frequency with daytime voiding intervals less than 1 hour and nighttime awakening to void 3 to 4 times.  It also caused signs and symptoms of obstructed voiding, which included hesitancy, slow or weak stream, decreased force of stream, and constant diapers.

Applying the facts in this case to the criteria set forth above, the Board finds that the preponderance of the evidence is against the assignment of an initial compensable rating prior to July 7, 2008, in excess of 40 percent prior to February 14, 2012, and in excess 60 percent thereafter for neurogenic bladder.

Prior to July 7, 2008, the Veteran's neurogenic bladder was manifested by symptoms of urgency and incontinence.  There was no evidence that the condition required the use of absorbent materials that must be changed at least 2 times per day.  The Board observes that during the July 2007 VA examination, the Veteran reported that he was going to start wearing diapers.  However, the examiner reported that he was unsure when the Veteran was getting them.  As such, an initial compensable rating is not warranted for voiding dysfunction during his stage of the appeal.  38 C.F.R. § 4.115a.  The Board has considered whether higher a rating could be awarded under any other diagnostic criteria for genitourinary system dysfunctions.  However, the evidence during this stage of the appeal does not show symptoms to warrant a higher rating for urinary tract infection, obstructed voiding, urinary frequency, or renal dysfunction.  The Veteran does not contend otherwise.  Thus, the Board finds no basis on which to assign a compensable rating prior to July 7, 2008.  

For the period from July 7, 2008, to February 13, 2012, the Veteran's neurogenic bladder required the wearing of absorbent materials which must be changed 2 to 4 times per day.  The evidence during this stage of the appeal does not suggest that the condition required the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day.  Notably, at the time of the July 2008 VA examination, the Veteran reported that he wore diapers 2 times per day.  As such, an initial compensable rating in excess of 40 percent prior to February 14, 2012 is not warranted.  38 C.F.R. § 4.115a.  The Board has considered whether a higher rating could be awarded under any other diagnostic criteria for genitourinary system dysfunctions.  The Board observes that the diagnostic criteria do not provide ratings in excess of 40 percent for urinary frequency, obstructed voiding, or urinary tract infection.  The criteria for renal dysfunction allows ratings in excess of 40 percent, however, renal dysfunction has not been assessed at any time during this stage of the appeal.  As such, an initial rating in excess of 40 percent prior to February 14, 2012 is not warranted.

From February 14, 2012, the appellant's neurogenic bladder has required the wearing of absorbent materials that must be changed more than 4 times per day, which is required by the current 60 percent rating.  The Board observes that 60 percent is maximum rating for voiding dysfunction.  Other codes pertaining to urinary frequency and obstruction voiding do not provide ratings higher than 40 percent.  The Board has considered whether a higher rating is warranted for renal dysfunction.  However, the clinical evidence does not reflect abnormal renal function.  Thus, a rating in excess of 60 percent is not warranted at any time during the period on appeal.  

In summary, the Board has considered the entire record, including the Veteran's reported symptomatology and the objective clinical evidence.  For the reasons set forth above, the Board concludes that the preponderance of the evidence is against the assignment of an initial compensable rating prior to July 7, 2008, in excess of 40 percent prior to February 14, 2012, and 60 percent thereafter for the Veteran's neurogenic bladder.  Thus, the benefit of the doubt rule does not apply.  38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Earlier Effective Date Claims

As a preliminary matter, the Board notes that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form.  The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen.  See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157.  The amended regulations, however, apply only to claims filed on or after March 24, 2015.  Because the Veteran's claims were received by VA prior to that date, the former regulations apply and are cited below. 

A specific claim in the form prescribed by the Secretary of the VA must be filed in order for benefits to be paid to any individual under the laws administered by VA.  38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). 

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim.  Such informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155(a). 

Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017).

Except as otherwise provided, the effective date of a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110 (2012); 38 C.F.R. § 3.400 (2017).  The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.  38 U.S.C. § 5110(b)(2).  Otherwise, it is the date of receipt of the claim.  38 C.F.R. § 3.400(o)(2) (2017); see also Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992) (holding that evidence in a claimant's file which demonstrates that an increase in disability was "ascertainable" up to one year prior to the claimant's submission of a claim for VA compensation should be dispositive on the question of an effective date for any award that ensues).

When there is a final denial of a claim, and new and material evidence is subsequently received, the effective date of the award of compensation is the date of receipt of the new claim or date entitlement arose, whichever is later.  38 C.F.R. § 3.400(q)(1)(ii).

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b).  Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b) (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Neurogenic Bladder

The Veteran asserts that an effective date prior to November 27, 2006 is warranted for the award of service connection for his neurogenic bladder.  The basis for his contention is unclear.  

In this case, the Veteran's original claim of service connection for a bladder condition was received in March 1997.  That claim was denied in an October 1999 rating decision.  The Veteran was notified of his appellate rights in an October 1999 letter.  He did not appeal the RO's determination and no new and material evidence was received within a year of the issuance of the rating decision.  Thus, the RO's October 1999 rating decision is final.  The Veteran has not argued otherwise.  

On November 27, 2006, the Veteran submitted VA treatment records in which it was noted that he had a history of neurogenic bladder.  

On December 15, 2006, the Veteran submitted a claim of service connection of a bladder disability.  His claim of service connection was granted in an October 2012 rating decision, which also assigned an effective date of November 27, 2006.  The record contains no earlier statements or documents that could be construed as an informal claim and the Veteran has pointed to no such statements or documents.  

After reviewing both the law and the facts set forth above, the Board finds that an effective date prior to November 27, 2006, for the award of service connection for the Veteran's neurogenic bladder is not warranted.  

As detailed herein, the claim was initially denied in an October 1999 rating decision.  There is no indication that the Veteran appealed the October 1999 rating decision and no new and material evidence was received within the appeals period.  Absent a showing of clear and unmistakable error, which has neither been shown nor specifically alleged, the rating decision denying the claim is final.  On November 27, 2006, the Veteran submitted VA medical records noting a history of neurogenic bladder, which the RO construed as an informal claim of service connection.  The Veteran's petition to reopen the claim was received on December 15, 2006.  Neither the Veteran, nor his representative submitted any written correspondence which could be construed as a formal or informal claim to reopen the previously denied claim of entitlement to service connection for neurogenic disorder prior to November 27, 2006.  He has not contended otherwise.  

In sum, the Board finds that there is simply no basis upon which to justify granting an effective date earlier than November 27, 2006.  Thus, the appeal for an earlier effective for the grant of service connection for neurogenic disorder must be denied.  See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.

Award of a 100 Percent Rating for Loss of use of the Bilateral Lower Extremities

The Veteran asserts that an effective date prior to September 11, 2008 is warranted for the award of 100 percent rating for loss of use of the bilateral lower extremities, previously claimed as radiculopathy of the bilateral lower extremities. 

The Veteran's claim of entitlement to an increased rating for a lumbar spine disability was received on December 15, 2006. 

The Veteran was provided a VA examination in July 2007 for his service-connected back disability at which time he reported lower back pain radiating into the lower extremities.  Neurological examination revealed deep tendon reflexes that were 1+ in the bilateral lower extremities.  Sensory examination revealed diminished sensation at L5-S1.  The examiner diagnosed radiculopathy of the bilateral lower extremities.  There was no indication that the condition caused loss of used of the bilateral lower extremities.  

Subsequent records reveal complaints of back pain, but the records do not indicate that the Veteran's radiculopathy caused loss of use of the bilateral lower extremities.  Notably, in a May 2008 VA treatment record, the Veteran presented with complaints of pain in both feet, which was attributed to both his diabetes and his service-connected lumbar spine disability.  It was noted that the Veteran had a negative sensation response in the plantar aspect and also some of the dorsal aspect of the left foot.  Diabetic shoes were prescribed.  In a June 2008 opinion, the Veteran's private treating physician noted that the Veteran had paresthesia in the lower extremities.  Restless legs syndrome was assessed, but the physician did not assess the severity of the condition.  An August 2008 VA consultation note revealed the Veteran was evaluated for a shower chair.  It was determined that the Veteran was better served with a bathtub bench for assistance in the shower, a hand held shower, and 2 shower grab bars.  

In a VA treatment record dated September 11, 2008, it was noted that the Veteran's complaints included severe neuropathy.  He reported in a wheelchair accompanied by his friend.  He requested a scooter and an electric hospital bed.  The physician noted that the appellant transferred with assistance and was minimally ambulant with a cane.  It was determined that the Veteran would be better served with an electric wheelchair.

After reviewing both the law and the facts set forth above, the Board finds that an effective date prior to September 11, 2008, for the award of a 100 percent rating for loss of use of the bilateral lower extremities is not warranted.  

In this regard, although the Veteran filed a claim of entitlement to an increased rating for his service-connected lumbar spine disability on December 15, 2006, he did not raise the issue of loss of use of the lower extremities at that time and the record contained no indication of loss of use.  As detailed herein, the Veteran was provided a VA examination in July 2007 at which time radiculopathy of the lower extremities was assessed.  However, the examiner did not indicate that it caused loss of use of both feet.  Similarly, in a June 2008 report by the Veteran's private treating physician, paresthesia of the lower extremities was assessed; again there was no finding that it caused loss of use of the bilateral feet.  The evidence does not reflect severe neuropathy until September 11, 2008, at which time it was determined that an electric wheelchair was needed.  Therefore, the evidence prior to September 11, 2008 does not reflect a factually ascertainable increase in the Veteran's radiculopathy to warrant a 100 percent rating.  

In sum, it was not factually ascertainable prior to September 11, 2008 that the Veteran's radiculopathy of the bilateral lower extremities caused loss of use of the feet.  The Veteran has not contended otherwise.  Accordingly, an effective date earlier than September 11, 2008 for the award of a 100 percent rating loss of use of the bilateral lower extremities is not warranted and the claim is denied.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 3.400(o)(2); Gilbert v. Derwinski, 1 Vet. App. 49 (1990)

Special Monthly Compensation for Loss of Use of the Bilateral Lower Extremities

The Veteran asserts that an effective date prior to September 11, 2008 is warranted for the award of special monthly compensation based on loss of use of the bilateral lower extremities.  

To be eligible for SMC under 38 U.S.C. § 1114(l), the Veteran must have, as the result of service-connected disability, suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance.

The Veteran was awarded a 100 percent disability rating for loss of use of the bilateral feet, effective September 11, 2008.  As detailed herein, the Board has determined that the Veteran did not meet the criteria for a 100 percent rating prior to that time.  Thus, the Veteran did not meet the criteria of SMC based on loss of use of the bilateral lower extremities prior to September 11, 2008.  Again, he has not contended otherwise or offered any specific argument in support of this issue.  

Therefore, the Board finds no basis upon which to conclude that the criteria for an effective date earlier than September 11, 2008 for the award of SMC based on loss of use of the bilateral lower extremities have been met.


Entitlement to Special Monthly Compensation Based on the Need for Aid and Attendance

Special monthly compensation is payable at a specified rate if the Veteran, as the result of service-connected disability, is permanently bedridden or so helpless as to be in need of regular aid and attendance.  38 U.S.C. § 1114(l) (2012); 38 C.F.R. § 3.350(b) (2017). 

The following will be accorded consideration in determining the need for regular aid and attendance:  inability of claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment.  38 C.F.R. § 3.352(a)(2017). 

VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b) (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Service connection is in effect for loss of use of the bilateral extremities, rated as 100 percent disabling; depressive disorder, rated as 70 percent disabling; neurogenic bladder, rated as 60 percent disabling; and a lumber spine disability, rated as 40 percent disabling.

In the report of a February 2009 VA examination for the Veteran's service-connected back disability, it was noted that the Veteran is wheelchair bound and requires the assistance from his fiancée to get dressed and undressed and complete his grooming and bathing.  He cannot stand without the assistance of a cane and someone next to him as he is unsteady and his legs are weak.  He can no longer drive.   

In May 2009, the Veteran submitted the report of an examination for housebound status and permanent need for regular aid and attendance.  It was noted that the Veteran was able to feed himself but was unable to prepare his own meals.  He needed assistance with bathing and tending to other hygiene.  He was not legally blind and did not require nursing home care.  However, he did require medication management and did not have the ability to manage his own financial affairs.  The physician noted restrictions caused by the upper extremities; however, service connection for disabilities of the upper extremities has not been awarded.  With regard to restrictions of the lower extremities, the physician reported that the Veteran is non-ambulatory and uses an electric wheelchair.  He opined that the Veteran's lumbar radiculopathy, cervicalgia, urinary tract infection, and contusion of the shoulder affected his ability to perform self-care.  It was noted that the Veteran left home only to attend medical appointments. 

VA treatment records dated from April 2009 to May 2009 demonstrate that the Veteran was in domiciliary care for degenerative disc disease, degenerative changes in the knees, foot pain, and neuropathies.  

In a May 2009 medical opinion, the Veteran's private treating physician opined that the Veteran is a candidate for adoptive living and assistance.  He needs full time assistance for his care and activities of daily living.  The Veteran is unable to dress or wash himself and is also unable to cleanse himself after he defecates.  The physician noted that the Veteran needs the assistance of his wife 100% of the time.  He noted that the Veteran has very limited ability to ambulate.  

In an August 2009 statement, the Veteran's fiancé stated that she assisted the Veteran with his "everyday living due to his inability to do for himself as a result of his service connected back, legs, and feet, as well, as his non-service connected neck, shoulder, arm, and hands disabilities."  She said that she prepares his meals, assists him with dressing, bathing, brushing his teeth, combing his air, and transferring him from the bed to his wheel chair and vice versa.  She noted that the Veteran wears adult diapers due to his bladder and bowel dysfunction so she assists with changing and cleaning him.  She also reported that she assists with his medication.  Additionally, a living facility provided the Veteran with several items to assist him with daily living.  

In an August 2009 statement, the Veteran's son indicated that that the Veteran has limited motion ability to his back, feet, and legs.  He reported that he helps get his father dressed, cooks his meals, runs errands, and does yard work.  

In an August 2009 statement, a certified nurse's aide reported that she comes every other day to assist the Veteran with his everyday living needs such as bathing, hair care, medication administration, dressing changes, wound care, blood sugar monitoring, and to assist with light housekeeping.  

In an August 2009 statement, the Veteran's sister reported that she helps her brother wash and clean his body and clothes, get dressed, put on his shoes, and take his medication.  She also reported that she sometimes changes his diaper.  In a statement from the Veteran's friend, the friend reported that he frequently visits the Veteran and assists with transferring him for his hospital bed, showering, shaving, and medication.

In an August 2009 opinion, the Veteran's private treating physician indicated that the Veteran is totally dependent on a constant companion or live-in person to provide and assist him with his care, including preparing food and all activities of daily living.  Without such living arrangement, the Veteran would be 100% incapacitated.  

In a March 2010 statement, a home care service provider noted that in February 2010, their services were recommended by a VA physician 3 times a week at 2 hours.  They assist the Veteran with showering, transfer, disposable diapers, skin care, shaving, meals, and housekeeping tasks.  They opined that the Veteran is in need of additional hours of extra assistance.  

In a December 2012 statement, the Veteran's representative asserted that SMC for aid and attendance is warranted.  He argued that the Veteran is unable to stand and is confined to a wheelchair.  A home health aide visits 7 days per week, two times per day.  The representative asserted that this is inadequate as the Veteran must rely on family and friends to assist him during the day when he does not receive home health aide.  He noted that because of the Veteran's service connected disability, he requires assistance to bathe, brush his teeth, get into and out of bed, change his clothes, prepare his meals, changing his disposable underwear/diapers, and perform household maintenance.  

In December 2012, the Veteran was provided a VA examination for aid and attendance or housebound.  The examiner noted that the Veteran was not permanently bedridden, was not currently hospitalized and was able to travel beyond his current domicile.  His mode of travel consisted of a private vehicle accompanied by a family member.  It was noted that he Veteran resides with his spouse who works outside the home.  She rises early to change his diaper and bathe and dress the Veteran.  She uses a Hoyer lift to put him in his electric wheelchair.  She fixes breakfast and dinner and gives him his medication.  He has an aide that comes for 3 hours per day.  Prior to the Veteran's wife leaving for work, his son will come until the aide arrives.  When the Veteran's wife returns from work, she changes his diaper.  

The examiner noted that the Veteran's non-service-connected left shoulder disability affected his ability to protect himself from the daily environment.  With regard to self-care, the examiner reported that the Veteran is unable to perform dressing and undressing, bathing, grooming, and toileting.  With regard to limitations, the examiner noted that the Veteran cannot walk without assistance, could only leave home for medical care, and has permanent functional impairment.  It was noted that the cervical and lumbar spine had limitation of motion or deformity.  With regard to the lumbar spine, the examiner opined that the Veteran has severely limited range of motion.  He presented for the examination in an eclectic wheelchair and reported that he was unable to move his lower extremities.  He was able to bend forward but not to the sides.  The examiner noted that the function of the upper and lower extremities was not normal.  He noted that the Veteran had atrophy of the lower extremities and was unable to weight bear. 

After a review of the evidence of record, and resolving doubt in favor of the Veteran, the Board finds that special monthly compensation based on the need for aid attendance is warranted.  38 U.S.C. § 1114 (2017); 38 C.F.R. § 3.350(b) (2017).  The Board acknowledges that the evidence contains some indication that aid and attendance is needed, in part, for nonservice-connected disabilities.  The evidence, however, also demonstrates that, independent of his nonservice-connected disabilities, the Veteran's service-connected disabilities result in the Veteran's need for assistance with activities of daily living including preparing meals, maintaining hygiene, getting dressed, changing his disposable diapers, and transferring to and from the wheelchair due to service-connected disabilities.  Further, he needs assistance with medical management.  As such, the criteria for special monthly compensation are met.  38 C.F.R. § 3.352 (2017). 

In summary, the Board concludes that the record is sufficient to establish that the Veteran's service-connected disabilities render him disabled to the extent that he requires the regular aid and assistance of another person.  Under these circumstances, special monthly compensation based on the need for aid and attendance is warranted.  38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

The Notice of Disagreement (NOD) filed with the October 2008 rating decision denying service connection for erectile dysfunction was not timely.  

New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for erectile dysfunction is granted.

New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for bowel dysfunction is granted.

New and material evidence having not been received, the application to reopen the previously denied claim of entitlement to service connection for pes planus is denied.

Entitlement to service connection for a left shoulder disability is denied.

Entitlement to service connection for frostbite of the bilateral feet is denied.

Entitlement to service connection for limitation of extension of the left leg is denied.

Entitlement to a temporary total evaluation for a toe surgery pursuant to 38 C.F.R. § 4.30 based on surgical treatment requiring convalescence is denied.  

Entitlement to an initial compensable rating prior to July 7, 2008, in excess of 40 percent prior to February 14, 2012, and in excess of 60 percent thereafter for neurogenic bladder is denied.

Entitlement to an effective date earlier than November 27, 2006 for the grant of service connection for neurogenic bladder is denied.

Entitlement to an effective date earlier than September 11, 2008 for the award of a 100 percent rating for loss of use of the bilateral lower extremities, previously evaluated as right and left lower extremity radiculopathy is denied.  

Entitlement to an effective date earlier than September 11, 2008 for the grant of special monthly compensation based on loss of use of the bilateral lower extremities is denied.

Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is granted, subject to the law and regulations governing the payment of monetary benefits. 


REMAND

Erectile Dysfunction

The Veteran contends that his erectile dysfunction is secondary to his service-connected lumbar spine disability.  The Board observes that in the report of a July 2007 VA genitourinary examination, it was noted that the Veteran's erectile dysfunction is possibly from spine disease and voiding dysfunction.

In the report of a June 2013 VA medical opinion, however, the examiner determined that the claimed condition is less likely than not proximately due to or the result of the Veteran's service-connected lumbar spine disability.  However, an opinion regarding aggravation by the appellant's service-connected lumbar spine disability was not provided.  Additionally, the examiner did not consider whether the claimed condition is secondary to his service-connected neurogenic bladder condition.  On remand, such opinions must be obtained.

Bowel Dysfunction

The Veteran asserts that his bowel dysfunction is secondary to his service-connected low back disability.

At the outset, the Board observes that although post service-medical records reveal the Veteran's self-report of bowel incontinence, the records do not show treatment for the claimed condition.

The Board finds that there is conflicting medical evidence as to whether there is a diagnosis of the claimed condition and the etiology of the claimed condition.  

In an October 1995 VA treatment record, it was noted that the Veteran is bowel continent.  

In a June 2008 medical opinion, the Veteran's treating physician indicated that the Veteran suffered from chronic bowel dysfunction, which he indicated is a complication of his spinal injury.  However, in subsequent opinions dated in August 2009 and March 2010, he indicated that the chronic bowel dysfunction is secondary to the Veteran's diabetic gastroenteropathy.  The physician did not provide a rationale to support his findings.  

The Veteran underwent a general VA examination in June 2008 at which time he reported a history of chronic bowel dysfunction.  Following examination, the examiner diagnosed chronic bowel dysfunction.  He opined that bowel dysfunction was a direct result of the Veteran's spinal injury  

In February 2009, the Veteran underwent a VA examination for his service-connected lumbar spine disability.  He reported bowel complaints.  The examiner did not indicate whether bowel dysfunction was present or whether the reported condition is related to the Veteran's military service or to his service-connected lumbar spine disability.

The Veteran underwent a VA examination in February 2012.  The examiner determined that it is less likely than not that the Veteran's bowel dysfunction is proximately due to or the result of the Veteran's service-connected condition.  In so finding, the examiner noted that while the Veteran's private treating physician diagnosed chronic bowel dysfunction, it is unclear as to exactly what the physician was referring to.  She noted that she did not find any documentation in his records or other records for report of fecal incontinence or soiling and further, there is no medical work up of the claimed condition.  Although the Veteran reported fecal incontinence by history, there was no notation of such finding in the current records.

As the current evidence of record contains conflicting medical evidence as to whether the Veteran has a current bowel dysfunction and, if so, the etiology of the condition, the Board finds that an additional VA examination must be provided and an opinion obtained on remand.

Lumbar Spine Disability

In the December 2007 rating decision, the RO assigned a 100 percent rating for the Veteran's lumbar spine disability, effective October 26, 2006 because of hospitalization in excess of 21 days.  Thereafter, a 20 percent disability rating was assigned, effective December 1, 2006.  In November 2008, the Veteran submitted a "Notice of Reconsideration" arguing that a higher rating was warranted.  The Board finds that his statement is consistent with a notice of disagreement (NOD).  See 38 C.F.R. § 20.201 (as in effect prior to March 24, 2015).  In an October 2010 rating decision, the RO increased the rating for the Veteran's lumbar spine disability to 40 percent disabling, effective June 1, 2009.  

A Statement of the Case was issued in May 2017.  Given the procedural history, the RO only considered whether a rating in excess of 40 percent is warranted.  The RO did not consider whether a rating in excess of 20 percent was warranted prior to June 1, 2009.  Further, a review of the Statement of the Case demonstrates that all of the evidence regarding the Veteran's back disability was not considered.  In this regard, the Statement of the Case only references a February 2012 VA examination for the Veteran's lumbar spine disability.  A review of the claims file shows that the Veteran was provided VA examinations in July 2007, July 2008, February 2009, and May 2009.  The May 2017 Statement of the Case, did not list the aforementioned VA examinations nor did it discuss the examinations as part of its analysis.  

Accordingly, the claim must be remanded and the RO must review all of the evidence regarding the Veteran's lumbar spine disability, and readjudicate the increased rating claim in a supplemental Statement of the Case.


Radiculopathy of the Left and Right Lower Extremities 

In a December 2007 rating decision, the RO, in pertinent part, granted service connection for radiculopathy of the left and right lower extremities and assigned initial 10 percent disability ratings, effective November 27, 2006.  In November 2008, the Veteran submitted a "Notice of Reconsideration" arguing that higher ratings were warranted.  The Board finds that his statement is consistent with a notice of disagreement (NOD).  See 38 C.F.R. § 20.201 (as in effect prior to March 24, 2015).  Under these circumstances, a remand for an Statement of the Case is necessary.  Manlincon, supra.  

Higher rate of SMC Based on Loss of Use of the Bilateral Lower Extremities 

In an October 2012 rating decision, the RO granted SMC based on loss of use of the bilateral lower extremities.  In a statement received in December 2012, the Veteran's representative submitted a notice of disagreement asserting that a higher rate was warranted.  Specifically, he argued that the Veteran was entitled to SMC at the rate specified at 38 U.S.C. § 1114(n).  However, a Statement of the Case not been issued with regard to this issue.  This must be accomplished on remand.  Manlincon, supra.  

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should ensure that a Statement of the Case has been issued to the Veteran addressing the issues of entitlement to initial ratings in excess of 10 percent prior to September 11, 2008 for radiculopathy of the left and right lower extremities, and entitlement to a higher rate for SMC based on loss of use of the bilateral lower extremities.  The Veteran must be advised of the time limit in which he may file a substantive appeal, if he so desires.  38 C.F.R. § 20.302(b) (2017).  These issues should be returned to the Board for further appellate consideration, only if an appeal is properly perfected.

2.  Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his erectile dysfunction.  Access to records in the Veteran's electronic claims file should be made available to the examiner for review in connection with his or her opinion.  An additional VA examination may be provided if deemed necessary.

The examiner is to provide opinions for the following:

a. Is it at least as likely as not (i.e., a 50 percent or greater probability), that the Veteran's erectile dysfunction had its onset in service, or is otherwise causally or etiologically related to the Veteran's military service? 

b. Is it at least as likely as not (i.e., a 50 percent or greater probability), that the Veteran's erectile dysfunction was caused by his service-connected disabilities, to include his service-connected low back disability and/or neurogenic bladder?

c. Is it at least as likely as not (i.e., a 50 percent or greater probability), that the Veteran's erectile dysfunction has been aggravated (chronically worsened) by his service-connected disabilities?

If aggravation is found is found, please identify the baseline level of disability prior to aggravation, to the extent possible, based on the medical evidence and also any lay statements as to the severity of the condition over time.

A clear explanation for the VA medical opinion is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  If the examiner cannot respond without resorting to speculation, it should be explained why a response would be speculative.

5.  Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the bowel dysfunction.  Access to records in the Veteran's electronic claims file should be made available to the examiner for review in connection with his or her opinion.  An additional VA examination may be provided if deemed necessary.

The examiner is to provide opinions for the following:

d. Is it at least as likely as not (i.e., a 50 percent or greater probability), that the Veteran's bowel dysfunction had its onset in service, or is otherwise causally or etiologically related to the Veteran's military service? 

e. Is it at least as likely as not (i.e., a 50 percent or greater probability), that the Veteran's bowl dysfunction was caused by his service-connected lumbar spine disability?

f. Is it at least as likely as not (i.e., a 50 percent or greater probability), that the Veteran's bowel dysfunction has been aggravated (chronically worsened) by his service-connected lumbar spine disability?

If aggravation is found is found, please identify the baseline level of disability prior to aggravation, to the extent possible, based on the medical evidence and also any lay statements as to the severity of the condition over time.

A clear explanation for the VA medical opinion is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  If the examiner cannot respond without resorting to speculation, it should be explained why a response would be speculative.

In rendering an opinion, the examiner must discuss the evidence suggesting that there is no diagnosis of the claimed condition.  Additionally, the examiner must discuss the medical evidence indicated that the condition is due the Veteran's non-service-connected diabetic gastroenteropathy.

4.  After undertaking any development deemed necessary, readjudicate the issues on appeal, considering all the evidence of record.  If the benefits sought on appeal remain denied, provide the Veteran with a Supplemental Statement of the Case and the opportunity to respond.  The case should then be returned to the Board for further appellate review.

The Veteran 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).




______________________________________________
K. Conner
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs