Citation Nr: 18148619 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 17-51 665 DATE: November 7, 2018 ORDER The petition to reopen the previously denied claim for entitlement to service connection for a left knee disability is granted. Entitlement to service connection for a left knee disability is granted. The petition to reopen the previously denied claim for entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a back disability is denied. The petition to reopen the previously denied claim for entitlement to service connection for hypertension is denied. Entitlement to service connection for diabetes mellitus, type II is denied. Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder with anxious distress features, is granted. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to a 10 percent rating for dislocation of the right ring finger is granted. Entitlement to a compensable rating for chronic sinusitis is denied. Entitlement to a compensable rating for erectile dysfunction is denied. Entitlement to a compensable rating for burn scar of the left forearm is denied. Entitlement to a higher level of special monthly compensation for loss of use of a creative organ is denied. REMANDED Entitlement to service connection for a sleep disability is remanded. Entitlement to a rating in excess of 10 percent for residuals of left ankle fracture is remanded. Entitlement to service connection for headaches is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a May 2009 rating decision, the RO denied the Veteran’s claims for entitlement to service connection for a right and left knee disability and hypertension. The RO found no evidence of a connection of a left knee disability or hypertension during service and no evidence of worsening of a pre-existing right knee disability. The Veteran did not appeal. 2. The evidence received since the prior final denials of service connection for service connection for a right and left knee disability relate to an unestablished fact necessary to substantiate the claims. 3. The evidence received since the prior final denial of service connection for service connection for a hypertension does not relate to an unestablished fact necessary to substantiate the claims. 4. The Veteran’s right knee disability is at least as likely as not caused or aggravated by his service-connected ankle disability. 5. The Veteran’s left knee disability is at least as likely as not caused or aggravated by his service-connected ankle disability. 6. A back disability, diagnosed as degenerative joint disease, was not manifest in service and is unrelated to service. It was not demonstrated within 1 year following separation from service. 7. Hypertension was not manifest in service and is unrelated to service. It was not demonstrated within 1 year following separation from service. 8. Diabetes mellitus was not manifest in service, within 1 year from separation, and is not otherwise related to active service. 9. The Veteran demonstrated symptoms of an acquired psychiatric disability during service and continuously since service. Alternatively, his acquired psychiatric disability is aggravated by his service-connected disabilities. 10. A right shoulder disability was not manifest in service and is unrelated to service. 11. A left shoulder disability was not manifest in service and is unrelated to service. 12. The Veteran’s right ring finger has evidence of arthritis and there is some limitation of motion affecting the group of minor joints of which the right ring finger is a part. 13. For the entire period covered by this claim, the Veteran’s service-connected sinusitis has been manifested by an overall disability picture that more nearly approximates that of 2 non-incapacitating episodes per year of sinusitis characterized by headaches, pain, nasal congestion, and purulent discharge or crusting. 14. The Veteran’s service-connected erectile dysfunction is productive of loss of erectile power, but not deformity of the penis. 15. The Veteran’s burn scar of the left forearm measures less than 144 square inches and is not unstable, painful, deep or linear. 16. The Veteran has already been awarded a special monthly compensation award at the “k” level for loss of use of a creative organ. CONCLUSIONS OF LAW 1. The May 2009 rating decision is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.110. 2. New and material evidence has been received to reopen the claims of entitlement to service connection for a right and left knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has not been received to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The Veteran’s right knee disability is secondary to his service-connected ankle disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 5. The Veteran’s left knee disability is secondary to his service-connected ankle disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 6. A back disability, diagnosed as degenerative joint disease, was not incurred in or aggravated by service, is not attributable to service, and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. 7. Hypertension was not incurred in or aggravated by service, is not attributable to service, and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. 8. Diabetes mellitus was not incurred in or aggravated by service, and may not be presumed to be related to service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 9. The Veteran’s acquired psychiatric disorder is directly related to service and secondary to his service-connected disabilities. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 10. A right shoulder disability was not incurred in or aggravated by service and is not attributable to service. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. 11. A left shoulder disability was not incurred in or aggravated by service and is not attributable to service. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. 12. The criteria for a 10 percent rating, but no higher, for dislocation of the right ring finger has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Codes 5227, 5003-5010. 13. The criteria for a compensable rating for sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.97, Diagnostic Code 6512. 14. The criteria for a compensable rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.115b, Diagnostic Code 7522. 15. The criteria for a compensable rating for burn scar on the left forearm have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.118, Diagnostic Code 7802. 16. The criteria for higher special monthly compensation based upon a loss of use of a creative organ are not been met. 38 U.S.C. §§ 1114 (k), 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1979 to December 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A claim for a total disability TDIU is part of an increased rating claim when such a claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, a claim of entitlement to a TDIU was raised by evidence of record which indicated that the Veteran may be unemployable due to the effects of his service-connected disabilities. See Dr. H.H.G April 2018 report. As the record now raises a question of whether the Veteran is unemployable due to his service-connected disabilities, a claim for a TDIU is properly before the Board. Application to Reopen Claim The Veteran contends that his previously denied claims for entitlement to service connection for a right and left knee disability and hypertension should be reopened. For the reasons explained below, the Board finds that the Veteran has submitted new and material evidence to reopen his previously denied claims for a right and left knee disability. However, the Board finds that the Veteran has not submitted new and material evidence to warrant reopening his previously denied claim for service connection for hypertension. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). 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. The credibility of this evidence must be presumed, albeit just for the limited purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a May 2009 rating decision, the RO denied the Veteran’s claims for entitlement to service connection for a right and left knee disability and hypertension. The RO found no evidence of a connection of a left knee disability or hypertension during service and no evidence of worsening of a pre-existing right knee disability. The Veteran was notified of his appellate rights. A notice of disagreement was not received within the subsequent one-year period, nor was any new and material evidence received during that time period. Therefore, the May 2009 rating decision became final. Since the previous denial, the Veteran submitted a letter from Dr. H.S. who opined that the Veteran’s knee disabilities were aggravated by the Veteran’s service connected ankle disability. A new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of the new claim; however, if new and material evidence is submitted supporting the new theory of causation, the claim must be reopened. See Boggs v. Peake, 520 F.3d 1330 (2008). Dr. H.S.’s letter has never been submitted and is therefore new. Not only is it new, but it is also material as it contains competent medical evidence linking the Veteran’s disabilities to his service-connected ankle disability. Therefore, the Board finds that the Veteran’s previously denied knee claims may be reopened. Unlike the Veteran’s knee claims, the Board finds that evidence received since the May 2009 rating decision does not offer any new, probative information pertaining to the Veteran’s hypertension claim, namely competent evidence linking it to his service. The Veteran has not submitted any new evidence regarding his hypertension claim. New evidence obtained from the VA medical centers likewise do not offer any new probative information. Accordingly, the Board concludes that new and material evidence has not been presented, and the defects that existed at the time of the May 2009 rating decision have not been cured. Therefore, the claim for entitlement to service connection for hypertension may not be reopened. Service Connection In order to obtain service connection under 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 3.303 (a) a Veteran must satisfy a three element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so- called ‘nexus’ requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Secondary service connection is also available for disabilities that are proximately due to or the result of a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). 1. Entitlement to service connection for a left and right knee disability There is evidence of current disabilities – namely osteoarthritis of the left and right knees. Service treatment records are silent for any knee complaints or disabilities. Parenthetically, although the RO previously denied the Veteran’s claim for a right knee disability due to no evidence of aggravation of a preexisting disability, the Board finds that the Veteran’s entrance examination does not list a right knee disability. The Veteran’s right knee problems were only recorded on his Report of Medical History. Therefore, the presumption of soundness applies. In a June 2014 correspondence, Dr. A.T. wrote that he had treated the Veteran since 2014 and diagnosed him with degenerative disease of both knees, worse on the right than left. He indicated that he had reviewed the Veteran’s medical history and “it is my professional opinion that it is at least as likely as not that [the Veteran’s] condition is a result of his military service. In my personal experience as a military orthopedic surgeon I do believe that the rigors of his occupation in the military did contribute to the development of arthritis.” The Veteran was afforded a VA ankle examination in July 2016 where the Veteran reported that his left ankle had worsened to the point of him needing the use of a cane to ambulate. The Veteran was not afforded a VA knee examination. In May 2018, the Veteran, through his representative, submitted a letter from Dr. H.S. Dr. H.S. noted that the Veteran’s August 1979 entrance examination notes a torn ligament in the right knee at age 15 but a preliminary physical examination concluded that the knee is “working fine [with] no further problems.” Dr. H.S. opined that it is at least as likely as not that the Veteran’s bilateral knees and back have been aggravated by the Veteran’s service-connected left ankle disability. He reasoned that the Veteran walks with an antalgic gait to compensate for his left ankle and over time, this has caused additional wear and tear on his bilateral knees and back. The Board finds Dr. H.S.’s letter highly probative in value. He reviewed the pertinent facts and provided the underlying reasons for the opinion. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). He found the Veteran’s service-connected ankle disability as the source of the Veteran’s right and left knee disabilities – particularly the Veteran’s changed gait due to his service-connected ankle disability aggravates the Veteran’s bilateral knee disabilities. See Allen, supra. The Board attaches minimal probative value to Dr. A.T.’s letter as he did not provide a thorough opinion supported by rationale regarding the etiology of the Veteran’s bilateral knee disabilities. He indicated that he reviewed the Veteran’s medical history and based on his experience, he related the Veteran’s knee disabilities to service. In considering the evidence of record, the Board finds that there are no negative opinions regarding the relationship of the Veteran’s bilateral knee disabilities to his service-connected ankle disability. The Board should not and will not at this juncture develop the case further by attempting to obtain medical evidence for the sole purpose of refuting the positive evidence of record. Resolving doubt in favor of the Veteran, the claims of entitlement to service connection for a right and left knee disability are granted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a back disability, hypertension and diabetes The Veteran contends, without specificity, that he is entitled to service connection for degenerative joint disease of the spine, hypertension, diabetes mellitus. For the reasons explained below, the Board finds that service connection is not warranted as there is no evidence indicating that a back disability, hypertension or diabetes arose in service; within 1 year of separation or are otherwise related to service. In the case of any veteran who served for ninety (90) days or more during a period of war - a chronic disease becoming manifest to a degree of ten (10) percent or more within one (1) year from the date of separation from such service shall be considered to have been incurred in or aggravated by such service, notwithstanding there is no record evidence of such disease during the period of service. Arthritis (degenerative joint disease), hypertension and diabetes mellitus are listed as chronic diseases. 38 U.S.C. § 1112 (a)(1); 38 C.F.R. §§ 3.307, 3.309. For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 mm or greater and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more on at least three different days. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. VA treatment records indicate that the Veteran carries diagnoses of degenerative joint disease (DJD) of the spine, hypertension and diabetes. However, service treatment records do not show a diagnosis of degenerative joint disease, hypertension or diabetes. The Veteran has not pointed to any evidence which the Board may relate his current DJD, hypertension and diabetes mellitus to his active service. Further, the record does not reflect diagnoses of DJD, hypertension or diabetes mellitus during the one-year presumptive period after the Veteran’s separation from service. Service connection is therefore not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309(a). As the preponderance of the evidence is against the claims for service connection for a back disability, hypertension and diabetes mellitus, the benefit-of-the-doubt rule does not apply, and the claims must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder with anxious distress features The Veteran, through his representative, submitted an April 2018 letter from Dr. H.H.G. who opined that the Veteran’s major depressive disorder more likely than not began in service and has continued to the present. She further opined that the Veteran’s progressive mental health decline is more likely than not permanently aggravated by his service-connected tinnitus, left ankle disability, dislocation of the right ring finger, chronic sinusitis, erectile dysfunction and burn scar on the left forearm. In support of her conclusions, she cited to evidence that the Veteran experienced “a degree of prejudice, racism and constant mistreatment in the military due to being a Muslim.” The Veteran reported that this caused him “an overwhelming amount of depression and stress.” This caused him to self-medicate with alcohol and marijuana to cope with the mental health problems and he was ultimately discharged due to misconduct from drug abuse. She also cited to lay statements from the Veteran’s wife and brother who reported that the Veteran came home from service a different person. They stated that he drank heavily and was not the same outgoing person he was when he entered service. Dr. H.H.G. cited to literature which states that “self-medication with the use of alcohol or drugs in an attempt to reduce anxiety is an explanatory mechanism for the high co-occurrence of anxiety and substance use disorders.” The Board assigns significant probative value to Dr. H.H.G.’s opinion. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Dr. H.H.G. considered the Veteran’s reported history, medical records and provided an opinion, supported by rationale. She offered 2 alternative theories – on a directive and secondary basis – which she explained the supporting reasoning. The Board finds both theories to be plausible explanations for the etiology of the Veteran’s acquired psychiatric disability. In considering the evidence of record, the Board finds that there are no negative opinions regarding the relationship of the Veteran’s psychiatric disability to service or his service-connected disabilities. The Board should not and will not at this juncture develop the case further by attempting to obtain medical evidence for the sole purpose of refuting the positive evidence of record. Resolving doubt in favor of the Veteran, the claim of entitlement to service connection for an acquired psychiatric disorder is granted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for a right and left shoulder disability The Veteran contends, without specificity, that he is entitled to service connection for the above referenced disabilities. However, other than on the Veteran’s July 2016 VA Form 21-526EZ there is no evidence that the Veteran suffers from a right or left shoulder disability that is related to service. There is evidence that the Veteran has suffered from bilateral shoulder pain post service. However, there is no evidence of any complaints or treatment for a bilateral shoulder disability during service or for many years post-service. The Veteran has not asserted why he believes these disabilities are related to service and the record does not support any nexus between the disabilities and service. As the preponderance of the evidence is against the claims for service connection, the benefit-of-the-doubt rule does not apply, and the claims must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating 5. Entitlement to a compensable rating for dislocation of the right ring finger The Veteran contends, without specificity, that he is entitled to a compensable rating for his service-connected dislocation of the right ring finger. For the reasons explained, below, the Board finds that the Veteran is entitled to a 10 percent rating, but no higher, for dislocation of the right ring finger. With regard to the Veteran’s increased rating right ring finger claim, the only schedular means of awarding such a compensable rating is based on x-ray evidence of arthritis in the finger. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016) (there is no minimum compensable rating available for painful motion under Diagnostic Code 5227 for the ring and little finger). In July 2016, the Veteran was afforded a VA hand and finger conditions examination where the examiner noted a diagnosis of dislocation of the right ring finger with degenerative joint disease. The Veteran reported that his finger has worsened over time and the change in weather aggravates his arthritis. The Veteran endorsed functional loss. The Board again notes that under the rating criteria for limitation of motion of the little finger presented in Diagnostic Code 5227, a noncompensable rating is the maximum schedular rating available for the Veteran’s right ring finger disability. There can be no award of a higher rating under Diagnostic Code 5227. However, the Board has further considered whether a compensable rating may be warranted on any other available basis for any period on appeal. As the limitation of motion involved in this issue is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion associated with arthritis established by x-ray findings. The Board finds that the July 2016 VA examination report establishes that diagnostic imaging objectively demonstrates degenerative joint disease of one joint of the right ring finger, and the report reasonably establishes that this manifests in some mild degree of limitation of motion accompanied by objectively observed pain under some circumstances. The Board finds that the July 2016 examination report demonstrates that the Veteran’s right ring finger disability features arthritis shown on diagnostic imaging, and that this diagnosis is accompanied by sufficient probative evidence reasonably indicating that there is some limitation of motion affecting the group of minor joints of which the right ring finger is a part. A critical question is then raised with regard to whether these facts warrant a 10 percent disability rating under Diagnostic Code 5010-5003. The Board has given careful consideration to the question of whether the diagnosis of arthritis in a single minor joint warrants a 10 percent disability rating pursuant to Diagnostic Code 5010-5003 as arthritis with limitation of motion affecting a group of minor joints. For the purposes of this case, the Board finds it most reasonable to consider a disability affecting a joint within a group as a disability that affects the group. The Board has considered the governing regulatory provisions of 38 C.F.R. § 4.45 (f) which states: “multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities... [among other sets of joints] are considered groups of minor joints.” It is unclear whether the phrase “multiple involvements” is to be understood as requiring two joints be involved within a group of minor joints before a group be considered affected or, rather, whether this language merely indicates that multiple minor joints in the same local group will share a single arthritis rating. The Board finds that the latter understanding is most reasonable and most favorable to the Veteran in this case, and this understanding results in a finding that a 10 percent rating is warranted pursuant to Diagnostic Code 5010-5003 at least from the date of the July 2016 VA examination report first showing arthritis demonstrated on diagnostic imaging. No rating in excess of 10 percent is warranted in this case as, once again, no higher ratings are available under the applicable Diagnostic Code 5227 and any further increased rating under Diagnostic Codes 5003 and 5010 for the involved arthritis would require involvement of additional minor joint groups or major joints or incapacitating episodes; neither the evidence nor the Veteran’s contentions in this case suggest involvement of additional major joints or minor joint groups nor has any evidence or contention suggested incapacitating episodes associated with the right ring finger arthritis. 6. Entitlement to a compensable rating for chronic sinusitis The Veteran contends, without specificity, that he is entitled to a compensable rating for chronic sinusitis. See June 2016 VA Form 21-526EZ. For the reasons explained below, the Board finds that a compensable rating is not warranted. Sinusitis is evaluated pursuant to 38 C.F.R. § 4.97, Diagnostic Codes 6510 through 6514, which pertain to various types of sinusitis, each of which is rated pursuant to a general rating formula for sinusitis. Diagnostic Code 6510 pertains to chronic pansinusitis sinusitis; 6512 pertains to chronic frontal sinusitis; 6513 pertains to chronic maxillary sinusitis; and 6514 pertains to chronic sphenoid sinusitis. Under the general rating formula, a noncompensable evaluation contemplates sinusitis detected by X-ray only. A 10 percent evaluation is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non- incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is warranted when there are three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent evaluation is assigned following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. A note following this section provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97. A December 2015 VA treatment record indicates that the Veteran reported with symptoms of sinus pressure, thick, green mucous, congestion and cough, which interferes with his sleep. He was diagnosed with a sinus infection and prescribed medication. A March 2016 VA treatment note indicates that the Veteran requested Loratadine to treat his allergies/sinus disability. The Veteran was afforded a VA sinusitis examination in July 2016 where the examiner noted the diagnoses of sinusitis and rhinitis. The Veteran reported that his post nasal drip causes him to have an upset stomach and has worsened over time. The examiner noted that the Veteran’s sinusitis has caused 2 non-incapacitating episodes in the previous 12 months and no incapacitating episodes. A July 2016 radiology report indicates that the Veteran had slight mucoperiosteal thickening of the ethmoid and left maxillary sinus but otherwise negative. Based on the foregoing, the Board finds that the Veteran is not entitled to a compensable rating as there is no evidence of incapacitating episodes or at least 3 or more non-incapacitating episodes of sinusitis. Accordingly, the Board finds that there is a preponderance of the evidence against the claim for a compensable rating for sinusitis, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 7. Entitlement to a compensable rating for erectile dysfunction The Veteran contends, without specificity, that he is entitled to a compensable rating for his impotence, also rated as erectile dysfunction. For the reasons explained below, the Board finds that a compensable rating is not warranted. Erectile dysfunction is rated under Diagnostic Code 7522. A 20 percent rating is assignable for physical deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b. VA treatment records reflect that the Veteran has been diagnosed with erectile dysfunction, which is treated with medication. While the Veteran has loss of erectile power, the medical evidence of record neither indicates, nor does the Veteran contend, that he has any physical deformity of his penis. Without evidence of deformity of the penis, there is no basis for the assignment of a compensable evaluation for erectile dysfunction. Accordingly, the Board finds that there is a preponderance of the evidence against the claim for a compensable rating for erectile dysfunction, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 8. Entitlement to a compensable rating for burn scar of the left forearm The Veteran contends, without specificity that he is entitled to a compensable rating for the burn scar on his left forearm. For the reasons explained below, the Board finds that a compensable rating is not warranted. Under Diagnostic Code 7802, burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear are assigned a maximum 10 percent rating for an area or areas of 144 square inches (929 sq. cm.) or greater. Note (1): A superficial scar is one not associated with underlying soft tissue damage. Note (2): If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The mid-axillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under § 4.25. Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. The Veteran was afforded a VA scars examination in July 2016 where he reported that sometimes his scar is irritated to touch; itches and is sensitive. The examiner noted that none of the Veteran’s scars are painful and unstable. The examiner described the scar as being less than deep partial thickness. It was also noted to be a superficial non-linear scar measuring 7 by 2 centimeters. The examiner noted that the Veteran’s scar does not cause disfigurement or result in limitation of function. Based on the foregoing, the Board finds that the Veteran is not entitled to a compensable rating as there is no evidence that his superficial scar measures 144 square inches or more. The Board has considered whether the Veteran is entitled to a higher rating under another diagnostic code; however, there is no evidence that the Veteran’s scar is unstable, painful, deep, or linear. See Diagnostic Codes 7801,7803, 7804, 7805. Accordingly, the Board finds that there is a preponderance of the evidence against the claim for a compensable rating for scars on the left forearm, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 9. Entitlement to a higher level of special monthly compensation (SMC) for loss of use of a creative organ The Veteran contends, without specificity, that he is entitled to a higher SMC for loss of use of a creative organ due to his erectile dysfunction. As will be explained below, the Veteran is not entitled any higher level of SMC. VA law provides that entitlement to special monthly compensation is warranted if a Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C. § 1114 (k); 38 C.F.R. § 3.350 (a) (emphasis added). The regulations direct that the special monthly compensation is available regardless of whether the loss of use is for one or more creative organs as the criteria is disjunctive, i.e., separated by the word “or.” Special monthly compensation grants an additional level of compensation to Veterans above the basic levels of compensation (0 percent -100 percent) for various types of losses or levels of impairment solely due to service-connected disabilities. However, the law provides that only one “k” award can be granted for loss or loss of use of a creative organ or organs. That is, VA law does not provide for any higher level of special monthly compensation based on loss or loss of use of a creative organ or organs. See 38 U.S.C. §§ 1114 (k) - (s); 38 C.F.R. § 3.350 (a) - (i). The Board has no authority to grant claims on an equitable basis and must follow the applicable provisions of law. See 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In such a case, where the law is dispositive, the higher level of special monthly compensation claim must be denied due to a lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 1. Entitlement to service connection for a sleep disability is remanded. VA treatment records indicate that the Veteran was prescribed Hydroxyzine for “sleep/anxiety.” He was diagnosed with sleep apnea following a sleep study at the University of North Carolina. However, there is also evidence that the Veteran’s service-connected tinnitus prevents him from sleeping and he has difficulty sleeping without first indulging in alcohol. As it is unclear if the Veteran suffers from a sleep disability that is secondary to his service-connected tinnitus and acquired psychiatric disability (granted in this decision), the Board finds that a remand is necessary to obtain a medical opinion which addresses the etiology of any diagnosed sleep disability. 2. Entitlement to a rating in excess of 10 percent for residuals of left ankle fracture is remanded. The Veteran was last afforded a VA examination concerning his left ankle disability in July 2016. However, the July 2016 examination report did not include any testing for pain on active and passive motion or joint testing in weight-bearing and non weight bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016) (precedential finding that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint). Therefore, the Board finds that a remand is necessary to afford the Veteran another VA examination which assesses the current severity of the Veteran’s left ankle disability and includes the requisite testing. 3. Entitlement to service connection for headaches In a June 2018 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for headaches. That same month, the Veteran filed a Notice of Disagreement (NOD) with the denial. However, the RO has not issued a Statement of the Case (SOC) in response to the NOD. Where a claimant files a notice of disagreement, and the RO has not issued a SOC, the issue must be remanded to the RO for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Therefore, the Board remands the matter for the issuance of an SOC. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) The Board has found that that the issue of entitlement to a TDIU is before the Board. As there remains pending service connection and increased rating issues on appeal, the outcome of which may affect the individual and overall combined disability rating, the Board finds that the issues are inextricably intertwined, and as such must be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are “inextricably intertwined” when they are so closely tied together that a final decision cannot be rendered unless both issues have been considered). Once the service connection and increased rating issues are decided, TDIU must be revisited, to include whether referral for extraschedular evaluation is warranted. It appears that the Veteran seeks ongoing treatment with the VA; however, the most recent VA treatment record is dated April 2018. On remand, updated VA treatment records should be obtained and associated with the claims file. See 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Associate VA treatment records beginning from April 2018 with the record. 2. Provide the Veteran with appropriate notice of VA’s duties to notify and to assist. Particularly, the Veteran should be properly notified of how to substantiate a claim for an increased rating on the basis of TDIU. Additionally provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information. 3. Issue a Statement of the Case that addresses the issue of entitlement to service connection for headaches. Inform the Veteran that he must perfect a timely appeal for those issues to be considered by the Board. If, and only if, the Veteran timely perfects the appeal, return the case to the Board. 4. Then, schedule the Veteran for a VA sleep disorders examination to determine the etiology of any sleep disabilities. The Veteran’s electronic claims file, including a copy of this remand, must be made available to the examiner for review in connection with the opinion. The examiner is asked to offer opinions as to the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran suffers from a sleep disability that was incurred in or is otherwise related to service. (b) If not, opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran suffers from a sleep disability that is caused or aggravated by his service-connected tinnitus or acquired psychiatric disability. If aggravation is found, the examiner should address the baselines manifestations and the increased manifestations due to the service-connected tinnitus or acquired psychiatric disability. The examiner is requested to address the following: (a) VA treatment records that indicate that the Veteran was prescribed Hydroxyzine for “sleep/anxiety;” (b) evidence that the Veteran was diagnosed with sleep apnea following a sleep study at the University of North Carolina; (c) evidence that the Veteran’s service-connected tinnitus may prevent him from sleeping; (d) and evidence that the Veteran has difficulty sleeping without first indulging in alcohol. A complete rationale for all opinions reached must be provided. 5. Then, schedule the Veteran for an examination in order to determine the current level of severity of his left ankle disability. The electronic claims folder and a copy of this remand must be made available to the examiner who should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. The examination report should also include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing. See Correia, supra. The examiner should also indicate the impairment that results from the Veteran’s service connected left ankle disability in terms of occupational functioning and daily activities. (Continued on the next page)   6. Ensure the development outlined above has been accomplished, that the examination reports are adequate, and then arrange for any additional development indicated. Then readjudicate the claims on appeal, including the claim to entitlement to a TDIU, on a schedular and extraschedular basis. If the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Baskerville, Counsel