Citation Nr: 18158309 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-58 089 DATE: December 14, 2018 ORDER An increased rating for Special Monthly Compensation (SMC) based on loss of use of a creative organ is denied. A compensable rating for ejaculatory failure is denied. A rating of 60 percent, but no higher, for a urinary disability is granted. An initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. An earlier effective date prior to March 28, 2010 for service connection for ejaculatory failure is denied. An earlier effective date prior to March 28, 2010 for service connection for a urinary disability is denied. An earlier effective date prior to March 28, 2010 for service connection for PTSD is denied. An earlier effective date prior to March 28, 2010 for service connection for left lower extremity radiculopathy is denied. A total disability rating based on individual unemployability (TDIU) is granted. REMANDED A compensable rating for a back disability is remanded. An initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. The Veteran’s SMC based on loss of use of a creative organ is the highest available for this disability. 2. The Veteran does not have a penile deformity. 3. The Veteran’s urinary disability is manifested by a voiding dysfunction that requires the use of absorbent materials that must be changed more than four times per day. 4. The Veteran’s PTSD does not lead to total social impairment. 5. The Veteran separated from service on March 27, 2010. The Veteran’s claim for service connection for a back disability was received within one year of his separation from service and his claim is effective the day following his separation. 6. The Veteran separated from service on March 27, 2010. The Veteran’s claim for service connection for ejaculatory failure was received within one year of his separation from service and his claim is effective the day following his separation. 7. The Veteran separated from service on March 27, 2010. The Veteran’s claim for service connection for a urinary disability was received within one year of his separation from service and his claim is effective the day following his separation. 8. The Veteran separated from service on March 27, 2010. The Veteran’s claim for service connection for PTSD was received within one year of his separation from service and his claim is effective the day following his separation. 9. The Veteran separated from service on March 27, 2010. The Veteran’s claim for service connection for left lower extremity radiculopathy was received within one year of his separation from service and his claim is effective the day following his separation. 10. The Veteran’s service connected disabilities render him unemployable. CONCLUSIONS OF LAW 1. The criteria for a higher rating for SMC based on loss of a creative organ are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.27, 4.71a. 2. The criteria for a compensable rating for ejaculatory failure are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.27, 4.71a, DC 7522. 3. The criteria for a 60 percent rating, but no higher, for a urinary disability are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.27, 4.71a, DC 7512. 4. The criteria for a rating in excess of 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.27, 4.71a, DC 9411. 5. The criteria for an effective date prior to March 28, 2010 for the award of a service-connected back disability have not been met. 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.155, 3.400. 6. The criteria for an effective date prior to March 28, 2010 for the award of service-connected ejaculatory failure have not been met. 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.155, 3.400. 7. The criteria for an effective date prior to March 28, 2010 for the award of service-connected urinary disability have not been met. 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.155, 3.400. 8. The criteria for an effective date prior to March 28, 2010 for the award of service-connected PTSD have not been met. 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.155, 3.400. 9. The criteria for an effective date prior to March 28, 2010 for the award of service-connected left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.155, 3.400. 10. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 2006 to March 2010. Increased Rating Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In a claim for a greater original rating after an initial award of service connection, all the evidence submitted in support of the Veteran’s claim is to be considered. See Fenderson, 12 Vet. App. 119 (1999). SMC The Veteran was granted SMC based on loss of use of a creative organ. This is the highest SMC allowed for this disability. Therefore, the claim will be denied. Ejaculatory Failure The Veteran’s ejaculatory failure disability is rated as noncompensable under DC 7522. There is no diagnostic code which deals with ejaculatory failure exclusively. The Veteran’s erectile dysfunction is currently rated under 38 C.F.R. § 4.115b, DC 7522 which is deemed by the Board to be the most appropriate primarily because it is the only diagnostic code which includes loss of erectile power among its criteria. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate. DC 7522 provides a 20 percent rating for deformity of the penis with loss of erectile power. No other disability rating is provided by this diagnostic code. See 38 C.F.R. § 4.115b, DC 7522. The provisions of 38 C.F.R. § 4.31 indicate that in every instance where the minimum schedular evaluation requires residuals and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required symptomatology is not shown. The Veteran contends his ejaculatory failure is worse than indicated by his noncompensable rating. August 2010 and July 2012 examiners did not note the Veteran had any penile deformities. The remainder of the Veteran’s record is negative for treatment or symptoms of any penile deformities. The Veteran’s record indicates the Veteran suffered a cut on his penis while in service. However, the record does not indicate this cut led to a deformity, either internal or external. Therefore, the claim will be denied. Urinary Disability The Veteran’s urinary disability is rated as 40 percent disabling under DC 7512. Under DC 7512, a 40 percent rating is assigned for a voiding dysfunction that requires the wearing of absorbent materials which must be changed two to four times per day. A 60 percent rating is assigned for a voiding dysfunction that requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. The Veteran contends his urinary disability is worse than indicated by his 40 percent disability rating. In an August 2010 examination, the Veteran reported he had urinary incontinence that required he wear pads that had to be changed three to five times per day. A July 2012 examiner noted the Veteran had urinary hesitancy, dribbling, and leakage. The examiner reported the Veteran had to wear absorbent materials that had to be changed two to four times per day. The remainder of the Veteran’s record shows he continues to struggle with symptoms due to his urinary disability. The Board finds the evidence as to whether the Veteran is entitled to a higher 60 percent rating to be in equipoise and granting the benefit of the doubt to the benefit, finds the Veteran’s symptoms warrant a 60 percent rating based on his need to change his absorbent materials up to five times per day. The Board notes this is the highest available rating under this diagnostic code. PTSD The Veteran’s PTSD is rated as 70 percent disabling under DC 9411. A 70 percent rating is prescribed when there is evidence of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. A 100 percent rating is prescribed when there is evidence of total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations, grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation as to time or place; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). The Veteran contends his PTSD is worse than indicated by his 70 percent disability rating. The Veteran was afforded an examination for his mental health in June 2012. The examiner opined the Veteran’s mental health diagnosis led to occupational and social impairment with reduced reliability and productivity. The Veteran had symptoms including anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, flattened affect, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideations. The Veteran’s records indicate he attempted suicide in 2014. The Veteran was afforded another examination for his PTSD in October 2015. The examiner opined the Veteran’s mental health disability lead to occupational and social impairment with deficiencies in most areas. Additionally, an examiner reported the Veteran missed three or more days per week a month and needed to leave work early three or more times per month due to his mental health. Additionally, in October 2015, a vocational expert opined the Veteran could not sustain the stress from a competitive work environment and could not expect to engage in gainful employment due to his mental health. The Veteran reported not getting enough sleep, struggling with workplace relationships, and having suicidal ideations. The vocational examiner opined the Veteran’s symptoms prevented him from maintaining substantially gainful employment. The vocational examiner also noted the Veteran tended to isolate himself socially, but did turn to his friends in tough times. The Veteran most recently had an examination for his PTSD in December 2017. The examiner opined the Veteran’s PTSD led to occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported he lived by himself and was married but separated since 2010. The Veteran reported he had a couple of friends and family members relatively close by. The Veteran said he was not going to school and had worked only sporadically since 2012 and left on his own because he wasn’t able to perform job duties effectively. The Veteran’s symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once per week, near-continuous panic or depression, chronic sleep impairment, mild memory loss, impaired judgment, disturbance of motivation and mood, difficulty establishing and maintaining effective relationships, and intermittent inability to perform activities of daily living. While the Veteran’s record indicates he clearly has difficulty with relationships and work, the record does not indicate the Veteran is totally socially impaired. While his record indicates he was separated from his spouse and not actively seeking another relationship, the Veteran did indicate he had some friends he could turn to and had family in the area. The Veteran clearly suffers symptoms from his PTSD, such as an intermittent inability to perform activities of daily life and the inability to work, the majority of his symptoms do not approximate those warranting a higher 100 percent rating such as total social impairment, gross impairment in thought processes, delusions or hallucinations, grossly inappropriate behavior, or memory loss for names of close relatives or his own name. Additionally, while the Veteran contemplated suicide once, the record does not indicate the Veteran suffers from continuous suicidal ideations. Therefore, the Board finds a higher 100 percent rating is not warranted. Regarding all the claims above, neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board acknowledges the Veteran’s statements that his disabilities cause him problems and he believes they are worse than his current rating indicates. The Board also acknowledges the Veteran continues to seek treatment for his disabilities and that they cause him pain, stress, loss of sleep, and mental distress. However, while the Veteran is competent to report his symptoms, he is not competent to opine on matters requiring medical knowledge, such as determining the extent and severity of his health conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board places more probative weight on the medical evidence and has decided the claims as discussed above. While the Veteran’s disabilities may, in fact, bother him a great deal, it is important for the Veteran to understand that this is the basis for the current findings and the ratings cited above. If his disabilities did not cause him problems, there would be no basis for the ratings above, the only question is the degree. Earlier Effective Date In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. 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); 38 C.F.R. § 3.400. The effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(ii), (r). The provisions of 38 C.F.R. § 3.400 (b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within one year after separation from service. With regard to the date of entitlement, the term “date entitlement arose” is not defined in the current statute or regulation. However, it is the date when the veteran met the requirements for the benefits sought, which is determined on a “facts found” basis. 38 U.S.C. § 5110 (a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). An effective date generally can be no earlier than the “facts found.” DeLisio v. Shinseki, 25 Vet. App. 45 (2011). These “facts found” include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. For instance, if a veteran filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). Any communication or action, indicating 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. 38 C.F.R. § 3.155 (a). The Veteran contends his effective date for his award of service connection for his PTSD, urinary disability, back disability, left lower extremity radiculopathy, his ejaculation failure disability, and his SMC should all be prior to March 28, 2010. The Veteran is currently in receipt of the earliest effective date legally available. VA received the Veteran’s claim for service connection for these disabilities on June 14, 2010. The Veteran separated from service on March 27, 2010. Thus, the Veteran’s claim was received within one year of his separation from service and as discussed above, the earliest possible effective date for his claims is the day following his separation, which is March 28, 2010. The Veteran is currently in receipt of the earliest effective date possible and therefore, all claims for an earlier effective date will be denied. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). TDIU The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, the Veteran has not expressly raised the issue again and the issue is not raised by the record. The central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). The Veteran had a combined rating of 80 percent as of March 28, 2010 with his PTSD rated as 70 percent disabling and therefore met the criteria for a TDIU as of March 28, 2010. The Veteran has a high school education with some college credits and special training in trade school. The Veteran previously worked in sales. The Veteran was afforded a vocational assessment in October 2015. The vocational expert opined the Veteran could not sustain the stress from a competitive work environment and could not expect to engage in gainful employment due to his mental health. The Veteran reported not getting enough sleep, and struggling with workplace relationships. The vocational examiner opined the Veteran’s symptoms prevented him from maintaining substantially gainful employment. Therefore, a TDIU will be granted. REASONS FOR REMAND The Board finds a remand for the Veteran’s claims of an increased rating for his back and his left lower extremity radiculopathy is required. However, as a TDIU has been granted, the Veteran may want to consider withdrawing the claims that are being remanded. The Veteran was last afforded an examination for his back and his radiculopathy in July 2012. The Veteran reported flare ups of his conditions. The examiner noted the Veteran had forward flexion of his back to 90 degrees or greater. The examiner also noted the Veteran’s diagnosis of IVDS but noted the Veteran had not had any incapacitating episodes over the past 12 months. The examiner also reported the Veteran had no documented arthritis in his back. The examiner opined the Veteran suffered from mild paresthesias and numbness in his left lower extremity due to his radiculopathy. In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59. The final sentence of section 38 C.F.R. § 4.59 directs that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Additionally, a recent Court decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, No. 16-1385 (Vet. App. Sept. 6, 2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Closer inspection of the examinations of record show that they do not include all the required testing pursuant to 38 C.F.R. § 4.59 and Correia and Sharp. As such, new VA examinations are required. Additionally, as the severity of the Veteran’s back disability may impact the severity of his left lower extremity radiculopathy, the Board finds it necessary to also remand that issue. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Considering the TDIU grant the Veteran, in consultation with his representative, may wish to consider withdrawing all remaining claims (in writing). The matter is REMANDED for the following action: 1. The AOJ should obtain any of the Veteran’s outstanding VA and private medical records and associate them with the claims file. If possible, the Veteran himself should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. 2. After completing the above development and all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination in order to determine the current severity of his back and left lower extremity radiculopathy disabilities. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. 3. The examiner should address the following: The Veteran’s back should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with the range of the opposite undamaged joint. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, s/he should clearly explain why that is so. The examiner must estimate any functional loss in terms of additional degrees of limited motion experienced during flare-ups and repetitive use over time. If the examiner cannot provide the above-requested opinion without resorting to speculation, s/he should state whether all procurable medical evidence has been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. The examiner is also asked to comment on and describe the functional impairments caused by the Veteran’s service-connected disabilities as it pertains to the Veteran’s ability to function in an occupational environment. 4. Schedule the Veteran for an appropriate examination for his left lower extremity radiculopathy. The examiner should opine as to the current severity of the Veteran’s left lower extremity radiculopathy. 5. After undertaking any other appropriate development deemed necessary, readjudicate the issues on appeal. If the determinations remain adverse to the Veteran, he must be provided with a supplemental statement of the case. An appropriate period of time must then be allowed for a response before the record is returned to the Board for further review. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel