Citation Nr: 18156219 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-15 033A DATE: December 7, 2018 ORDER Entitlement to a compensable disability rating for erectile dysfunction secondary to medications for service connected conditions associated with recurrent major depressive disorder is denied. Entitlement to an effective date prior to September 6, 2013, for the award of service connection for gastroesophageal reflux disease (GERD) secondary to medications for service connected conditions associated with recurrent major depressive disorder is denied. Entitlement to an effective date prior to September 6, 2013, for the award of service connection for erectile dysfunction secondary to medications for service connected conditions associated with recurrent major depressive disorder is denied. Entitlement to an effective date prior to September 6, 2013, for the award of special monthly compensation (SMC) based on the loss of use of a creative organ is denied. REMANDED Entitlement to service connection for a hernia disorder is remanded. Entitlement to a compensable disability rating for GERD secondary to medications for service connected conditions associated with recurrent major depressive disorder is remanded. FINDINGS OF FACT 1. The Veteran does not have penile deformity. 2. On September 6, 2013, the Veteran filed a claim of service connection for erectile dysfunction secondary to medication taken for his service connected disabilities; no communications were received by VA prior to that time that may be construed as a formal or informal claim. 3. On September 6, 2013, the Veteran filed a claim of service connection for GERD as due to medication taken for service connected disabilities; no communications were received by VA prior to that time that may be construed as a formal or informal claim. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for erectile dysfunction secondary to medications for service connected conditions associated with recurrent major depressive disorder have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.115b, Diagnostic Codes 7599-7522 (2017). 2. The criteria for an effective date prior to September 6, 2013 for the grant of service connection for erectile dysfunction secondary to medications for service connected conditions associated with recurrent major depressive disorder have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 3. The criteria for an effective date prior to September 6, 2013 for the grant of service connection for GERD secondary to medications for service connected conditions associated with recurrent major depressive disorder have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 4. The criteria for an effective date earlier than September 6, 2013, for entitlement to SMC for loss of use of a creative organ have not been met. 38 U.S.C. §§ 1114, 5110 (2012); 38 C.F.R. §§ 3.350, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1971 to September 1971. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2016, the Board remanded the Veteran’s claims. The Veteran’s VA claims folder has been returned to the Board for further appellate proceedings. The Board also remanded the claims of service connection for recurrent sleep disorder as well as entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) in May 2016. In a May 2018 rating decision, the RO granted service connection for mild obstructive sleep apnea and TDIU and assigned a disability rating of zero percent and effective date of September 6, 2013 for the sleep apnea as well as an effective date of September 23, 2013 for the TDIU. The RO also awarded basic eligibility to Dependents’ Educational Assistance (DEA) effective September 23, 2013. The claims folder reveals that the Veteran filed notices of disagreement (NODs) in November 2018 with the assigned rating for the sleep apnea as well as the assigned effective dates for the award of service connection for sleep apnea, TDIU, and DEA. The RO acknowledged receipt the same month. Accordingly, as the receipt of the aforementioned NODs has been acknowledged by the RO, these situations are distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As the claims folder reflects that the aforementioned NODs have been recognized and that additional action is pending at the RO with regard to the claims addressed in the May 2018 rating decisions, Manlincon is not applicable to these claims. The Board observes that VA treatment records were associated with the claims folder following the most recent adjudication of the Veteran’s GERD, erectile dysfunction, and SMC claims (May 2018 statement of the case). The Veteran has not waived agency of original jurisdiction (AOJ) review of these records. However, these records are not relevant to the Board’s denial of the Veteran’s increased rating claim for erectile dysfunction and earlier effective date claims for GERD, erectile dysfunction, and SMC. Moreover, as will be discussed below, the Board is remanding the Veteran’s increased rating claim for GERD and service connection claim for a hernia disorder for further development. The AOJ will therefore have the opportunity to review the associated medical records prior to readjudication of the Veteran’s claims of increased rating for GERD and service connection for a hernia disorder. The Board notes that the issues of a disability evaluation in excess of 30 percent for recurrent major depressive disorder for the period prior to June 24, 2013; a disability evaluation in excess of 70 percent for recurrent major depressive disorder for the period on and after June 24, 2013; and whether L-, is entitled to recognition as a “helpless child” of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of eighteen were the subjects of a Board decision dated May 2016 that were separate from the claims addressed above. These claims were remanded for further development. A review of the record reveals that the AOJ is still taking action on these issues and the claims continue to remain in remand status. The Board will therefore take no further action on these issues. Higher evaluation for erectile dysfunction Disability ratings are assigned in accordance with the VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2017). “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran was granted service connection for erectile dysfunction secondary to medications for service connected conditions associated with recurrent major depressive disorder and a noncompensable rating was thereto assigned pursuant to 38 C.F.R. § 4.115b, Diagnostic Codes 7599-7522. There is no diagnostic code which deals with erectile dysfunction exclusively. Diagnostic Code 7522 concerns penis deformity, with loss of erectile power. Under Diagnostic Code 7522, a 20 percent rating is assigned for deformity of the penis with loss of erectile power. No other disability rating is provided. See 38 C.F.R. § 4.115b, Diagnostic Code 7522. In every instance where the minimum schedular evaluation requires residuals and the schedule does not provide for a zero percent rating, a zero percent rating will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31 (2017). The Veteran is seeking a compensable rating for his service-connected erectile dysfunction secondary to medications for service connected conditions associated with recurrent major depressive disorder. The Board observes that, during the pendency of this appeal, the Veteran was granted special monthly compensation under 38 U.S.C. § 1114(k) due to loss of use of a creative organ. In order for a compensable rating to be assigned under Diagnostic Code 7522, deformity of the penis must be demonstrated. In this regard, the Veteran was afforded a VA examination in April 2014. Upon examination of the Veteran, the VA examiner documented a normal examination of the penis. There is no medical evidence contrary to these findings. Therefore, the evidence does not show and the Veteran does not otherwise assert that he experiences penile deformity. For the reasons stated above, the preponderance of the evidence is against a compensable rating for the Veteran’s erectile dysfunction secondary to medications for service connected conditions associated with recurrent major depressive disorder. Thus, the benefit-of-the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. With regard to extraschedular consideration, neither the Veteran nor his attorney has raised any issue pertaining to this matter, nor have any other issues pertaining to extraschedular consideration been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. Ap. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Earlier effective dates for erectile dysfunction, GERD, and SMC based on the loss of a creative organ 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. 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. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. 38 C.F.R. § 3.400(b)(2) (2017). A claim is defined as a communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2017). Any communication or action that (1) indicates an intent to apply for one or more VA benefits and (2) identifies the benefit sought may be considered an informal claim. 38 C.F.R. § 3.155(a) (2015). When determining the effective date of an award of compensation benefits, VA must review all the communications in the file that could be interpreted to be a formal or informal claim for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). VA must look to all communications from a Veteran which may be interpreted as applications or claims - formal and informal - for benefits. VA has a duty to fully and sympathetically develop the Veteran’s claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case, in the December 2014 rating decision, the RO granted service connection for erectile dysfunction and GERD, both secondary to medications for service connected conditions associated with recurrent major depressive disorder as well as entitlement to SMC based on loss of use of creative organ and assigned effective dates of September 6, 2013. The Veteran contends that earlier effective dates are warranted for these awards. Although the Veteran contends that earlier effective dates are warranted, the Board finds that there is no basis for assignment of an effective date for such award at any time prior to September 6, 2013. Simply stated, there was no pending claim, informal or formal, filed prior to September 6, 2013 pursuant to which any of the benefits awarded could have been granted. The record is completely negative for any communication or action prior to September 6, 2013 indicating an intent to apply for service connection for erectile dysfunction, GERD, or SMC based on loss of use of creative organ from the Veteran, his attorney, or some person acting as his next friend which identifies that benefit as the one sought. Inasmuch as no claim for service connection for erectile dysfunction, GERD, and SMC based on loss of use of creative organ was received prior to September 6, 2013, the governing legal authority makes clear that, under these circumstances, the effective date can be no earlier than the date of the claim for that benefit. See 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). On September 6, 2013, the RO received the Veteran’s claims for service connection for erectile dysfunction and GERD, both as secondary to medication taken for service connected disabilities. As indicated above, these claims served as the basis for the RO’s December 2014 rating action that granted the claims (to include SMC based on loss of use of creative organ) and effective dates. In this regard, the Board notes that, while the VA does have a duty to assist a claimant in developing facts pertinent to a claim, it is the claimant who must bear the responsibility for coming forth with the submission of a claim for benefits under the laws administered by the VA. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The Board finds that the facts of this case clearly demonstrate that the VA was not put on notice that service connection for erectile dysfunction and GERD or SMC based on loss of use of creative organ was sought at any time prior to September 6, 2013. Because we can find no earlier date of claim, an earlier effective date is not warranted. Former section 3.157 We note in passing that the Court has determined that former 38 C.F.R. § 3.157 applied to already service-connected disability. The Board is bound by decisions of the Court.   REASONS FOR REMAND Service connection for hernia disorder and higher evaluation for GERD are remanded With respect to the Veteran’s claim of service connection for a hernia disorder, the Board remanded this claim in May 2016 for the AOJ to issue a SOC as the Veteran submitted a timely NOD following the denial of this claim by the RO in the December 2014 rating decision. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). A review of the record reveals that the AOJ has not issued a SOC for the hernia disorder claim. Therefore, the Board finds that remand is warranted for such. See Stegall v. West, 11 Vet. App. 268, 271 (1998). With regard to the Veteran’s claim of entitlement to a compensable disability rating for GERD secondary to medications for service connected conditions associated with recurrent major depressive disorder, the Board notes that the Veteran was last afforded a VA examination for this disability in April 2014. In a statement dated October 2018, the Veteran’s attorney reported that the Veteran’s GERD symptoms have since worsened. She noted an October 2017 VA treatment record wherein the Veteran reported a worsening of his GERD symptoms. She also submitted a November 2017 esophageal study that found peristatic contractions at a full 60 percent lower than the normal rate as well as a May 2018 GI endoscopy which documented “a diffuse area of moderate, erosive, and non-hemorrhagic body of the stomach.” In light of the foregoing, the Board finds that a contemporaneous VA examination is warranted to ascertain the current severity of the Veteran’s GERD. See Snuffer v. Gober, 10 Vet. App. 400 (1997) [a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination]. The matters are REMANDED for the following action: 1. Issue a SOC to the Veteran which addresses the issue of service connection for a hernia disorder. The Veteran should be given the appropriate opportunity to respond to the SOC. 2. Provide the Veteran with an appropriate VA examination to determine the current symptoms and severity of his service-connected GERD secondary to medications for service connected conditions associated with recurrent major depressive disorder. 3. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim of entitlement to a compensable disability rating for GERD secondary to medications for service connected conditions associated with recurrent major depressive disorder on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his attorney with the requisite period of time to respond. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Arif Syed, Counsel