Citation Nr: 21000124 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 12-06 391 DATE: January 4, 2021 ORDER A timely notice of disagreement (NOD) to the August 2016 rating decision that awarded service connection for erectile dysfunction with an initial noncompensable rating and special monthly compensation (SMC) for the loss of use of a creative organ, effective June 9, 2016, and denied an application to reopen a claim for service connection for a cervical spine disorder was received; the appeal is granted. REMANDED Entitlement to service connection for a cardiovascular disorder, to include as secondary to service-connected hypertension, is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected left ankle disability, is remanded. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected left ankle disability, is remanded. Entitlement to service connection for a right ankle disorder, to include as secondary to service-connected left ankle disability, is remanded. Entitlement to an initial rating in excess of 20 percent for left ankle disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to an initial compensable rating for erectile dysfunction is remanded. Entitlement to an effective date prior to June 9, 2016, for the award of service connection for erectile dysfunction is remanded. Entitlement to an effective date prior to June 9, 2016, for the award of SMC based on loss of use of a creative organ is remanded. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a cervical spine disorder is remanded. FINDINGS OF FACT 1. On August 22, 2016, the Agency of Original Jurisdiction (AOJ) notified the Veteran of a rating decision that awarded service connection for erectile dysfunction with an initial noncompensable rating and SMC for the loss of use of a creative organ, effective June 9, 2016, and denied an application to reopen a claim for service connection for a cervical spine disorder; however, his then-representative did not receive a copy of such rating decision. 2. In September 2016, the Veteran appointed a new representative and, in connection with such submission, his new representative requested information regarding the status of any recently issued decision so that he could appeal any such decision on the Veteran’s behalf, noting that, at the time, he did not have access to the electronic claims file; however, the AOJ did not respond. 3. In September 2018, the Veteran’s current representative submitted a NOD with all issues in the August 2016 rating decision, reporting that a recent review of the Veteran’s claims file revealed the existence of such rating decision, of which he was not previously aware. CONCLUSION OF LAW A timely NOD to the August 2016 rating decision that awarded service connection for erectile dysfunction with an initial noncompensable rating and SMC for the loss of use of a creative organ, effective June 9, 2016, and denied an application to reopen a claim for service connection for a cervical spine disorder was received. 38 U.S.C. §§ 5104, 7105, 5107; 38 C.F.R. §§ 3.1(q), 3.103, 3.109, 3.160(d), 19.24, 19.34, 20.101(c), 20.200, 20.201, 20.300, 20.301, 20.302(a), 20.305 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1979 to March 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in August 2009, January 2011, and October 2012, and an administrative decision issued in October 2018 by a Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2015, the Veteran testified before the undersigned Veterans Law Judge in regard to all claims on appeal other than the issue pertaining to the timeliness of the NOD. A transcript of the hearing is associated with the record. In March 2016, the Board, inter alia, remanded these claims for additional development and such now return to the Board for further appellate review. The Board also remanded a claim for service connection for a right shoulder disorder; however, such claim was granted in a May 2020 rating decision, thereby extinguishing the related appeal. The Board acknowledges that, in September 2020, the Veteran was sent a letter indicating that he had elected an in-person hearing with a Veterans Law Judge and, in light of COVID-19, was encouraged to opt into a virtual hearing; however, as reflected in a VA memorandum associated with the record in October 2020, such letter was sent in error, as the Veteran previously participated in a Board hearing in July 2015, and he has not subsequently requested a second hearing. See Quinn v. Wilkie, 31 Vet. App. 284 (2019). Furthermore, he has not requested a hearing in connection with appeal regarding the timeliness of the NOD. The Board also acknowledges that additional evidence consisting of VA treatment records have been associated with the record subsequent to the most recent adjudication of the Veteran’s claims in the February 2020 statement of the case and May 2020 supplemental statement of the case. However, as such evidence is irrelevant to the issues on appeal, there is no prejudice to the Veteran in proceeding with the adjudication of his claims at the present time. 38 C.F.R. § 20.1305(c). 1. Whether a timely NOD to the August 2016 rating decision was received. Under VA law in effect at the time of the August 2016 rating decision, claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice will clearly set forth the decision made, any applicable effective date, the reason for the decision, the right to a hearing, the right to representation, a summary of the evidence considered (if the claim is denied), and the necessary procedures and time limits to initiate an appeal of the decision by way of an NOD and Substantive Appeal. 38 C.F.R. § 3.103(b)(1), (f) (2016). Under the provisions of 38 U.S.C. § 7105(a), an appeal to the Board after an initial AOJ decision must be initiated by a NOD and completed by a Substantive Appeal (VA Form 9 or equivalent) after a statement of the case (SOC) is furnished to the claimant. In essence, the following sequence is required: there must be a rating decision by the AOJ, the claimant must express timely disagreement with the decision (a NOD), VA must respond by explaining the basis of the decision to the claimant (a SOC), and finally the claimant, after receiving adequate notice of the basis of the decision, must complete the process by stating his or her argument in a timely-filed Substantive Appeal (VA Form 9 or equivalent). 38 C.F.R. §§ 3.103, 20.200, 20.201, 20.202, 20.302. Subsequently, certification of issues on appeal to the Board by the AOJ by way of a VA Form 8 (Certification of Appeal) should occur for administrative purposes. 38 C.F.R. § 19.35. Effective March 24, 2015, VA amended its regulations to provide that VA will accept an expression of dissatisfaction or disagreement with an adjudicative determination by the AOJ as a NOD, only if it is submitted on a standard form, in cases where such a form is provided. See 79 Fed. Reg. 57660 (Sept. 25, 2014) (codified at 38 C.F.R. §§ 19.23, 19.24, 20.201(a) (2016) (emphasis added)). For every case in which the AOJ provides, in connection with its decision, a form for the purpose of initiating an appeal, a NOD consists of a completed and timely submitted copy of that form. VA will not accept as a NOD an expression of dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result that is submitted in any other format, including on a different VA form. 38 C.F.R. § 20.201(a)(1) (2016). Moreover, the filing of an alternate form or other communication will not extend, toll, or otherwise delay the time limit for filing a NOD, as provided in § 20.302(a). In particular, returning the incorrect VA form, including a form designed to appeal a different benefit does not extend, toll, or otherwise delay the time limit for filing the correct form. 38 C.F.R. § 20.201(a)(5) (2016). The NOD must be filed with the VA office from which the claimant received notice of the determination being appealed, unless notice has been received that the applicable VA records have been transferred to another VA office. In that case, the NOD or Substantive Appeal must be filed with the VA office that has assumed jurisdiction over the applicable records. 38 C.F.R. § 20.300 (2016). A NOD or Substantive Appeal may be filed by a claimant personally or by his or her properly appointed representative. 38 C.F.R. § 20.301(a) (2016). If an appeal is not filed by a claimant personally, or by his or her representative, and the claimant is rated incompetent by VA or has a physical, mental, or legal disability which prevents the filing of an appeal on his or her own behalf, an NOD and a Substantive Appeal may be filed by a fiduciary appointed to manage the claimant’s affairs by VA or a court, or by a person acting as next friend if the appointed fiduciary fails to take needed action or no fiduciary has been appointed. 38 C.F.R. § 20.301(b) (2016). A claimant or his or her representative must file a NOD with a determination of the RO within one year from the date that the RO mailed notice of the determination. 38 U.S.C. § 7105(b)(1); 38 C.F.R. § 20.302(a) (emphasis added). The date of mailing of the letter of notification from the RO will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. Id. If a NOD is not filed within the one-year time period, the RO decision becomes final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2016). An untimely NOD deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105(c). The date of the letter of notification shall be considered the date of mailing for purposes of computing time limits. A NOD postmarked prior to expiration of the one-year period will be accepted as having been timely filed. 38 U.S.C. § 7105(b)(1); 38 C.F.R. § 20.305(a) (2016). In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by VA. 38 C.F.R. § 20.305(a). Questions as to timeliness or adequacy of response shall be determined by the Board. 38 U.S.C. § 7105(d)(3); VAOPGCPREC 9-99, 64 Fed. Reg. 52376 (1999). Whether a NOD has been filed in a timely manner is an appealable issue. If the claimant or his or her representative protests an adverse determination made by the RO with respect to timely filing of the NOD, the claimant will be furnished a SOC on the issue of whether the NOD was timely. 38 C.F.R. §§ 19.24(d), 19.34, 20.101(c) (2016). The Board may implicitly or explicitly waive the issue of the timeliness of a Substantive Appeal. However, an untimely filed NOD is a jurisdictional bar to appellate consideration, and this issue may not be waived. Percy v. Shinseki, 23 Vet. App. 37, 41 (2009). The Board is bound by the law and is without authority to grant an appeal on an equitable basis. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. Vet. App. 416, 425 (1994). If there is a failure to comply with the above-cited law and regulations governing appellate procedure, it is incumbent on the Board to reject the application for review on appeal. 38 U.S.C. §§ 7105(d)(5), 7108; Marsh v. West, 11 Vet. App. 468, 470-72 (1998) (stating that “the Board has the jurisdiction - indeed, the obligation - to assess its jurisdiction”). As noted by the Federal Circuit, “it is well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits, that a potential jurisdictional defect may be raised by the court or tribunal, sua sponte or by any party, at any stage in the proceedings, and, once apparent, must be adjudicated.” Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (citations omitted). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999). On August 22, 2016, the AOJ mailed notification to the Veteran of a rating decision that awarded service connection for erectile dysfunction with an initial noncompensable rating and SMC for the loss of use of a creative organ, effective June 9, 2016, and denied an application to reopen a claim for service connection for a cervical spine disorder. Included in such notification were an advisement of his appellate rights and an NOD form in the event he wished to appeal any aspect of the decision. Such notification was sent to the Veteran’s address of record and reflects that his then-representative, K.L., an attorney, was provided a copy, but his address was not included. In September 2016, the Veteran’s current representative, A.N., an attorney, submitted a duly executed VA Form 21-22a appointing him as the Veteran’s representative. At such time, A.N. requested the status of any pending appeals and of all recently issued decisions, so as to be apprised of any pending appeals requiring action or any appealable decisions. In October 2016, the Veteran’s former representative, K.L., submitted a notice of withdrawal of representation, acknowledging that the Veteran had retained the services of A.N. Rather confusingly, both K.L. and A.N. were formerly the named partners in the law firm previously representing the Veteran, and it appears that K.L. is also now a member of the new firm of which A.N. is a member, as subsequently submitted VA Forms 21-22a (affirming the representation of A.N.) list K.L. as an authorized representative who may act on the Veteran’s behalf. Nevertheless, based on the September 2016 and October 2016 correspondences, the record clearly reflects that the Veteran appointed a new representative who requested notification of recent decisions, stating that he did not have access to the Veteran’s electronic claims file. Such request required the AOJ to apprise the Veteran’s new representative of the August 2016 rating decision. However, such request was never acknowledged by the RO, and it was only after A.N. subsequently requested a complete copy of the Veteran’s claims file in August 2018 (and presumably gained access to the electronic claims file soon thereafter) that he submitted a NOD to the August 2016 rating decision in September 2018, indicating the Veteran’s intent to appeal all issues decided therein. In connection with such submission, A.N. stated that he had not filed the NOD within the requisite time period (i.e., within the year after the issuance of the August 2016 rating decision) as he had only recently learned of the existence of the August 2016 rating decision. He also included an affidavit from K.L., the Veteran’s representative at the time the August 2016 rating decision was issued, in which K.L. reported that a review of the records kept in the ordinary course of business at his office revealed that the rating decision issued on August 22, 2016, was never received. The Board notes that there is a “presumption of regularity” under which it is presumed that Government officials have properly discharged their official duties. Butler v. Principi, 244 F.3d 1337, 1340 (2001). Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992), (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)); Schoolman v. West, 12 Vet. App. 307, 310 (1999) (“‘clear evidence to the contrary’ is required to rebut the presumption of regularity, i.e., the presumption that the notice was sent in the regular course of government action.”). The Board accordingly must presume that notification of the August 2016 rating decision was sent to the Veteran’s then-representative, K.L.; however, in light of his September 2018 affidavit that he never received it, coupled with the lack of an address on the notification letter, the Board finds that such presumption has been rebutted. Pursuant to the doctrine of equitable tolling, “equitable tolling pauses the running of, or ‘tolls,’ a statute of limitations when a litigant has pursued his [or her] rights diligently but some extraordinary circumstance prevents him from bringing a timely action.” Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1231-32 (2014). Under the “stop-the-clock” approach adopted by the U.S. Court of Appeals for the Federal Circuit in Checo v. Shinseki, 748 F.3d 1373, 1379-80 (Fed. Cir. 2014), a filing period may be tolled when an obstacle to timely filing arises, and the period begins to run again when that obstacle is removed. Thus, the relevant period for the equitable tolling analysis is the time during which the obstacle to timely filing exists. Id. (examining the period where the veteran was homeless and purportedly unable to timely file a Notice of Appeal). In the instant case, the Veteran has retained counsel throughout the entirety of his claims process and, as such, is clearly reliant upon the expertise of his counsel when navigating the VA claims and appeals process. Moreover, in an attempt to properly protect his client’s interests, the Veteran’s current representative, A.N., upon his appointment, requested that he be apprised of any recent decisions so that he could initiate any related appeals on the Veteran’s behalf in a timely manner. Furthermore, VA’s failure to respond to this request frustrated A.N.’s ability to act on his client’s behalf, and therefore served as an obstacle to his ability to perfect a timely appeal of the August 2016 rating decision. The Veteran’s attorney’s commitment to pursuing appeals of which he had knowledge during the relevant appeal period is evident from the record, as the record reflects correspondences during this time in which the attorney requested a status update regarding the appeals of which he was aware, namely those previously remanded by the Board. Based on the foregoing, the Board finds that the doctrine of equitable tolling is applicable, such that the time period for submitting a NOD with the August 2016 rating decision was tolled from September 2016, when the attorney requested information regarding recently issued rating decisions, until September 2018, when he gained knowledge of the August 2016 rating decision. Accordingly, the Board accepts the September 2018 NOD, filed on the Veteran’s behalf upon the attorney’s first knowledge of the August 2016 rating decision, as timely. As such, a statement of the case adjudicating these claims must be issued, and the claims are remanded herein for such action. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). REASONS FOR REMAND 2. Entitlement to service connection for a cardiovascular disease, claimed as secondary to service-connected hypertension. In March 2016, the Board remanded the instant claim to afford the Veteran a VA examination so as to determine the presence of all of his cardiovascular diseases, to include his carotid stenosis diagnosed in 2003 and noted during a July 2009 VA examination. Indeed, the Veteran’s recent VA treatment records still reflect carotid stenosis among his active medical problems. However, during the August 2017 VA examination performed pursuant to the Board’s remand directives, the examiner stated that the Veteran had never been diagnosed with cardiovascular disease other than his service-connected hypertension, and accordingly concluded that there was no evidence of such a disorder that could be linked to service or his service-connected hypertension. As the examiner did not offer an opinion of the Veteran’s carotid stenosis as directed, nor did not otherwise explain any conclusion that the diagnosis of carotid stenosis diagnosed during the appeal was not valid, a remand to obtain an addendum opinion addressing such matter is necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance). 3. Entitlement to service connection for OSA. 4. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected left ankle disability. 5. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected left ankle disability. 6. Entitlement to service connection for a right ankle disorder, to include as secondary to service-connected left ankle disability. In March 2016, the instant claims to afford the Veteran VA examinations and related medical opinions to determine the nature and etiology of his claimed OSA, bilateral knee disorders, and right ankle disorder. While the requested examinations and related medical opinions were rendered in August 2017, the Veteran has recently submitted a statement in which he details his in-service symptoms of these claimed disorders, and further asserts that he has experienced related symptomatology since service. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). As these lay assertions were not of record and therefore not considered at the time the VA opinions were rendered, a remand is required to obtain addendum opinions. Also, a review of the record reveals that the VA clinician failed to consider the entirety of the Veteran’s in-service bilateral knee treatment, noting that his service treatment records documented only one instance of treatment for each knee, whereas, in actuality, many more instances of in-service bilateral knee treatment are of record. As such, new medical opinions predicated on an accurate medical history are required. See Barr, 21 Vet. App. at 312. Further, as the Veteran requested that the records pertaining to his recent right knee surgery be obtained, efforts to do so must be undertaken. 7. Entitlement to an initial rating in excess of 20 percent for left ankle disability. Since the Board last remanded this claim in March 2016 and the Veteran was afforded a VA ankle examination in August 2017, the United States Court of Appeals for Veterans Claims has elucidated certain clinical findings that must be obtained during VA orthopedic examinations, to include those fully exploring the impact pain has on the orthopedic disability and a requirement that examiners quantify, if possible, a veteran’s functional loss during a flare-up based on his or her own reports of his symptoms during flare-ups. As the August 2017 VA ankle examination fails to include all of these requisite findings, the Board is required to remand the claim to obtain them. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (outlining VA examiners’ obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up and to use this information to characterize additional functional loss during flare-ups); Correia v. McDonald, 28 Vet. App. 158 (2016) (instructing that VA orthopedic examinations should include testing for pain on both active and passive motion, in both weight-bearing and nonweight-bearing (if applicable) positions, and, if possible, recording the range of motion of the opposite undamaged joint). Furthermore, as a January 2020 VA treatment record reflects a left ankle range of motion finding more limited than the range recorded during his August 2017 VA examination, the evidence of record suggests a potential worsening in the severity of this service-connected disability, further necessitating a new VA examination. 8. Entitlement to a TDIU. As the above requested development may affect the Veteran’s entitlement to TDIU, to include whether he is eligible for such benefit on a schedular basis, adjudication of this claim must be deferred until this development has been completed and the service connection claims and increased rating claim are readjudicated. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.). 9. Entitlement to an initial compensable rating for erectile dysfunction. 10. Entitlement to an effective date prior to June 9, 2016, for the award of service connection for erectile dysfunction. 11. Entitlement to an effective date prior to June 9, 2016, for the award of SMC based on loss of use of a creative organ. 12. Whether new and material evidence has been received in order to reopen a claim for service connection for cervical spine disorder. Given the Board’s conclusion that a timely NOD to the August 2016 rating decision that awarded service connection for erectile dysfunction with an initial noncompensable rating and SMC for the loss of use of a creative organ, effective June 9, 2016, and denied an application to reopen a claim for service connection for a cervical spine disorder was received, a remand is necessary in order to provide him a statement of the case. See Manlincon, 12 Vet. App. at 240-41. The matters are REMANDED for the following action: 1. Obtain the Veteran’s recent, outstanding VA treatment records from April 2020 forward, to specifically include the records related to his right knee surgery. 2. Obtain a VA medical opinion from an appropriate clinician regarding the etiology of the Veteran’s cardiovascular disease diagnosed during the appeal period, namely carotid stenosis. After reviewing the Veteran’s claims file, the clinician is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s carotid stenosis: (a) had its onset in or is otherwise directly related to service; (b) is caused by his service-connected hypertension; and (c) is aggravated by his service-connected hypertension. When rendering these opinions, the clinician must either assume that the Veteran currently has carotid stenosis (based on diagnoses made during an appeal period) or explain why such diagnoses of record are erroneous. A rationale must be provided for all opinions rendered. 3. Obtain a VA medical opinion from an appropriate clinician regarding the etiology of the Veteran’s OSA. After reviewing the Veteran’s claims file, the clinician is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s OSA had its onset in or is otherwise directly related to service, considering and commenting on the clinical significance of the lay assertions of in-service symptoms and continuity of symptoms outlined in the July 2020 statement of record. A rationale must be provided for all opinions rendered. 4. Obtain a VA medical opinion from an appropriate clinician regarding the etiology of the Veteran’s bilateral knee and right ankle disorders. After reviewing the Veteran’s claims file, the clinician is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s left knee, right knee, and right ankle disorders: (a) had their onset in or are otherwise directly related to service; (b) are caused by his service-connected left ankle disability; and (c) are aggravated by his service-connected left ankle disability. When rendering these opinions, the clinician is asked to consider and comment on the clinical significance of the lay assertions regarding a fall resulting from instability of his left ankle (for which he wears an ankle brace), as well as accounts of his in-service symptoms and continuity of symptoms, as outlined in the July 2020 statement of record. Further, the clinician should expressly consider and comment on the clinical significance of the Veteran’s in-service right knee treatment documented in November 1979 (initial right knee injury), July 1983 (second right knee injury), August 1983, September 1983 (at which time the Veteran was diagnosed with a meniscal tear), and October 1983; his in-service left knee treatment documented in September 1984 (first left knee injury), January 1985, March 1985, June 1985, and July 1985; and his February 1987 treatment for bilateral knee pain. A rationale must be provided for all opinions rendered. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left ankle disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A rationale must be provided for all opinions rendered. 6. Issue a statement of the case addressing the issues of entitlement to an initial compensable rating for erectile dysfunction; an effective date prior to June 9, 2016, for the award of service connection for erectile dysfunction; an effective date prior to June 9, 2016 for the award of SMC based on loss of use of a creative organ; and whether new and material evidence has been received to reopen the claim for service connection for a cervical spine disorder. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Northcutt, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.