Citation Nr: 18145006 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-04 300 DATE: October 25, 2018 ORDER Entitlement to an effective date earlier than September 29, 2010, for grant of service connection for erectile dysfunction (ED) is denied. Entitlement to a separate compensable rating for ED is denied. Entitlement to an effective date earlier than September 29, 2010, for award of special monthly compensation (SMC) under 38 U.S.C. 1114(k) is denied. Entitlement to a higher level of SMC under 38 U.S.C. 1114(k) is denied. REMANDED Entitlement to service connection, to include on a secondary basis, for hypertension (HTN) is remanded. FINDINGS OF FACT 1. In September 2010, the Veteran filed an original claim of compensation for diabetes mellitus, type II (DM). 2. The is no evidence of deformity of the Veteran’s penis. 3. A September 2011 rating decision granted entitlement to service connection for ED secondary to the Veteran’s service-connected DM. 4. The Veteran’s award of SMC was based on his service-connected ED, or loss of use of a creative organ, and he does not have any additional service-connected conditions which warrant an additional award of SMC. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than September 29, 2010, for grant of service connection for ED have not been met. 38 U.S.C. § 1114(l), (s), 5103, 5103A, 5107(b), 5110 (2012); 38 C.F.R. § 3.400 (2018). 2. The criteria for an initial compensable rating for ED have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.3, 4.7, 4.115(b), Diagnostic Code 7522 (2018). 3. The criteria for an effective date earlier than September 29, 2010, for establishment of SMC under 38 U.S.C. 1114(k) have not been met. 38 U.S.C. § 1114(l), (s), 5103, 5103A, 5107(b), 5110 (2012); 38 C.F.R. § 3.400 (2018). 4. The criteria for a higher level of SMC based on loss of use of a creative organ have not been met. 38 U.S.C. § 1114 (k) (2012); 38 C.F.R. § 3.350 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1970 to January 1974, including service in the Republic of Vietnam (Vietnam). These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Lastly, the Board notes that the Veteran seemingly attempted to raise the issues of increased compensation for an acquired psychiatric disorder, right lower extremity neuropathy, and left lower extremity neuropathy. In particular, in a statement dated in January 2016, the Veteran expressed his belief that his service-connected acquired psychiatric disorder and neuropathy should be rated higher. The Veteran and his representative are advised that a claim for benefits must be submitted on the standard application form prescribed by the Secretary. 38 C.F.R. §§ 3.1 (p), 3.155, 3.160 (2018). Effective Date The applicable law and regulations concerning effective dates provide that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. §§ 3.400, 3.400(o)(2). 1. Entitlement to an effective date earlier than September 29, 2010, for grant of service connection for ED The Board has considered the propriety of the September 29, 2010, effective date for the Veteran’s grant of service connection for ED, and finds that there is no legal entitlement to an earlier effective date in this case. As indicated, it is well established that the effective date for a claim shall be the date of receipt of the new claim or date entitlement arose, whichever is later. In this case, the Board notes that VA regulations indicate complications of DM, e.g., ED, are intertwined with the underlying malady. The Veteran filed an original claim for compensation for DM on September 29, 2010. Parenthetically, the Board notes that the evidence of record reflects the presence of ED prior to any diagnoses of DM. However, the Board finds no communication was received from the Veteran or any representative seeking service connection for ED or an associated disability prior to September 2010. As such, there is no legal entitlement to an earlier effective date in this case. (Parenthetically, the Board acknowledges that the claim of entitlement to service connection for HTN is being remanded below, but given the original claim for HTN was filed after the Veteran’s claim for DM, the Veteran is already in receipt of the earliest possible effective date for ED). Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an effective date earlier than September 29, 2010, for grant of service connection for ED. Accordingly, the appeal is denied. 2. Entitlement to an effective date earlier than September 29, 2010, for award of SMC under 38 U.S.C. 1114(k) As a preliminary matter, the Board notes that the facts set forth above are incorporated herein by reference. The Board has considered the propriety of the September 29, 2010, effective date for the Veteran’s award of SMC under 38 U.S.C. 1114(k), and finds that there is no legal entitlement to an earlier effective date in this case because the Veteran did not meet the criteria for SMC prior to September 29, 2010. As there is no legal entitlement to an effective date earlier than September 29, 2010, for grant of service connection for ED, there is also no basis for grant of SMC prior to September 29, 2010. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an effective date earlier than September 29, 2010, for award of SMC under 38 U.S.C. 1114(k). Accordingly, the appeal is denied. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155. 3. Entitlement to a separate compensable rating for ED The Veteran’s ED is currently rated as a noncompensable complication of his service-connected DM under Diagnostic Code 7913. Under Diagnostic Code 7913, the rater is directed to evaluate compensable complications of DM separately. 38 C.F.R. § 4.119, Diagnostic Code 7913. The Veteran has asserted he is entitled to a separate compensable rating for his ED. Under Diagnostic Code 7522, a single (and maximum) 20 percent disability rating is provided for penis deformity with loss of erectile power. Based upon a review of the record, the Board finds that a separate compensable rating is not warranted in this case. In making this finding, the Board accords significant probative weight to the VA examination provided in August 2011. The record reflects the examiner reviewed the Veteran’s pertinent medical history, documented his current complaints, and rendered findings and diagnoses consistent with the remainder of the evidence of record, and therefore, the examination is adequate for adjudication purposes. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Report of the August 2011 VA examination reflects, in pertinent part, a history of ED. Physical examination a normal penis without any evidence of deformity, masses, or tenderness. The Veteran’s scrotum was also noted as normal and well developed. As indicated above, a 20 percent disability rating is assigned where the evidence reflects penis deformity with loss of erectile power. The Board has considered the Veteran’s statements regarding inability to achieve or maintain an erection. However, in the absence of any penile deformity, the Board finds that a separate, compensable rating is not warranted for erectile dysfunction. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a separate compensable rating for ED. 4. Entitlement to a higher level of SMC under 38 U.S.C. 1114(k) Based upon a review of the record, the Board finds that there is no legal or factual basis for an award of SMC at a higher level in this case. In making this finding, the Board notes that VA regulations allow for payment of SMC based on certain losses or losses of use which is payable in addition to statutory evaluations. See 38 U.S.C. § 1114 (k) (2012); 38 C.F.R. § 3.350 (2018). In this case, the Veteran has been awarded SMC based upon his service-connected ED, which is considered loss of use of a creative organ. However, the evidence of record does not show that the Veteran suffers from any other service-connected losses or losses of use which would qualify him for a higher level of SMC. In other words, the Veteran’s service-connected ED is the sole basis for an award of SMC at this time. Hence, there is no legal or factual basis for award of SMC beyond Level K at this time. Id. Where, as here, the law is dispositive, the claim must be denied because of the absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not helpful to him. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Entitlement to service connection, to include on a secondary basis, for HTN is remanded. A review of the record reveals that the claim must be remanded prior to appellate consideration. Where, as here, VA undertakes to provide an examination or obtain an opinion when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision”). In that regard, the Board notes that the Veteran was provided with a VA diabetes examination in November 2010. Report of the November 2010 VA examination noted, in pertinent part, a history of HTN. The examiner opined that the Veteran’s essential HTN is aggravated by DM because of macrovascular complications of DM. However, the examiner also indicated that he could not provide any baseline for the HTN or note additional manifestations of the HTN without resort to mere speculation. No further opinion or rationale was provided. Subsequently, in August 2011 the Veteran was provided with a VA examination pertaining to his HTN. Report of the August 2011 VA examination reflects, in pertinent part, the Veteran’s statements regarding exposure to herbicide agents, i.e., Agent Orange, in service. The Veteran attributed his HTN to service. The examiner noted a history of HTN, which requires continuous medication. The examiner noted there is no evidence of any residuals of HTN in regard to the Veteran’s eyes, heart, kidneys, nerves, or psych. The examiner opined that the Veteran’s HTN is not proximately due to or a result of the Veteran’s DM. In doing so, the examiner highlighted the Veteran’s diagnosis is essential HTN, rather than secondary, which means it caused by or a result of any other disability. No further opinion or rationale was provided. The Veteran was most recently provided with a VA examination in October 2013. Report of the October 2013 VA examination reflects, in pertinent part, a history of well-controlled HTN. The examiner noted there are no other physical findings, complications, or conditions related to the Veteran’s HTN. The examiner opined that the Veteran’s HTN was less likely than not proximately due to or the result of the Veteran’s service-connected DM. In doing so, the examiner noted the lack of evidence of macrovascular complications such as nephropathy. No further opinion or rationale was provided. First, the Board notes that the Veteran seemingly raised a direct theory of entitlement to service connection for HTN at his August 2011 VA examination. In particular, the Veteran expressed his belief that his HTN is attributed to exposure to Agent Orange (AO) in service. The Board notes that VA has previously conceded exposure to AO as a result of the Veteran’s service. Based on a review of the record, the Board finds no reason to reverse this favorable finding. Developmental actions on a direct theory of entitlement have not yet been taken. As such, a remand is appropriate to address this theory of entitlement. Second, the Board turns to the seemingly contradictory medical opinions of record. On one hand, the November 2011 examiner referenced the presence of macrovascular complications of DM as the bases for opining that the Veteran’s essential HTN is aggravated by DM because of macrovascular complications of DM. No further opinion or rationale was provided. On the other hand, the August 2011 and October 2013 VA examinations based their opinions on the apparent absence of macrovascular complications. For instance, the August 2011 examiner noted there is no evidence of any residuals of HTN in regard to the Veteran’s eyes, heart, kidneys, nerves, or psych. Similarly, the October 2013 examiner noted the lack of evidence of macrovascular complications such as nephropathy. Given the conflicting evidence, all the VA examiners’ failure to provide an adequate rationale is significant. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Here, the Board is strained to make assumptions and draw inferences as to the examiners’ reasoning. Lastly, the Board notes that the August 2011 and October 2013 VA examiners did not explicitly provide the aggravation opinion necessary in this case. The Board lacks the medical expertise to determine whether the Veteran’s HTN was aggravated beyond its natural progression by his service-connected DM. As such, the Board finds that a remand is necessary in order to obtain a new medical examination and opinion adequately commenting on the evidence of record. The matter is REMANDED for the following action: 1. Thereafter, schedule the Veteran for VA examination by an appropriate medical professional to prepare an opinion with respect to the nature and etiology of the Veteran’s claimed HTN. The electronic claims file must be made accessible to the examiner for review, and such review should be noted in the examination report. Following a review of the claims file and medical history, the VA examiner must offer an opinion as to the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s HTN is caused by or a result of his military service, including exposure to AO in service. (b.) Whether it is as likely as not (i.e., a 50 percent or better probability) that the Veteran’s HTN is aggravated by the Veteran’s DM. Any opinion rendered should reflect consideration of the statements regarding symptomatology, and the November 2010 examiner’s finding of aggravation. The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, issue a supplemental statement of the case (SSOC) and provide the Veteran and his representative with an opportunity to respond. Then return the case to the Board, if otherwise in order. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel