Citation Nr: 21002513 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 19-17 852 DATE: January 13, 2021 ORDER An effective date prior to June 9, 2018, for the grant of service connection for erectile dysfunction (ED) is denied. An effective date prior to June 9, 2018, for the grant of service connection for special monthly compensation (SMC) (k), based on loss of use of a creative organ is denied. An effective date prior to June 9, 2018, for the grant of service connection for tinnitus is denied. An effective date prior to June 9, 2018, for the grant of service connection for headaches is denied. An effective date prior to June 9, 2018, for the grant of service connection for gastroesophageal reflux disease (GERD) is denied. A rating higher than 10 percent for tinnitus is denied. A higher rating for SMC based on loss of use of a creative organ is denied. Service connection for a gastrointestinal condition claimed as irritable bowel syndrome (IBS) is denied. REMANDED A compensable rating for GERD is remanded. A compensable rating for ED is remanded. A compensable rating for headaches is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to the June 9, 2018, Fully Developed Claim form, there was no pending formal claim, informal claim, or a written intent to file a claim for service connection for ED, tinnitus, headaches, or GERD. 2. The Veteran’s tinnitus is assigned a 10 percent rating, which is the maximum schedular rating authorized under Diagnostic Code 6260. 3. A higher rating for SMC based on loss of use of a creative organ is not provided. 4. The preponderance of the evidence is against a finding that the Veteran has IBS. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to June 9, 2018, for the grants of service connection for ED, the award of SMC, tinnitus, headaches, and GERD are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for a rating in excess of 10 percent for tinnitus are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 3. An increase in SMC based on the loss of use of a creative organ is not warranted as a matter of law. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350. 4. The criteria for service connection for IBS are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1980 to January 1988. The Board finds that the issue of entitlement to a TDIU has been raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Earlier Effective Date Generally, the effective date of an award of a claim is 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. VA has amended the regulations concerning the filing of claims, including no longer recognizing informal claims and eliminating the provisions of 38 C.F.R. § 3.157. The amendments are effective for claims and appeals filed on or after March 24, 2015. ED, SMC, Tinnitus, Headaches, and GERD The Veteran sought an effective date prior to June 9, 2018, for the grants of service connection for ED, SMC, tinnitus, headaches, and GERD. On June 9, 2018, VA received the Veteran’s Fully Developed Claim seeking service connection for ED, tinnitus, headaches, and GERD. A thorough review of the record does not show that any written communication by or on behalf of the Veteran in which service connection ED, tinnitus, headaches, or GERD was requested or was received prior to his June 2018 communication. Significantly, neither the Veteran nor his representative have identified the date upon which VA is thought to have received such a claim or that the Veteran made such a claim. As such, there is no legal authority for the Board to assign an earlier effective date, as there are no prior claims or final decisions related to these issues. Given that the award of SMC is based on the claim for service connection for ED, an earlier effective date for this award must also be denied. As such, there is no evidence of record which supports a date prior to June 9, 2018, as the effective date for the grants of service connection for the Veteran’s ED, the resulting grant of SMC based on his ED, tinnitus, headaches, or GERD. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Tinnitus The Veteran’s tinnitus has been assigned a 10 percent rating pursuant to Diagnostic Code 6260. Diagnostic Code 6260 provides for a maximum schedular rating of 10 percent for tinnitus; whether the sound is perceived in on ear, both ears, or in the head. See 38 C.F.R. § 4.87, DC 6260. In this case, there is no legal basis upon which to award a higher rating for tinnitus, as the maximum rating for tinnitus has already been assigned. The Veteran’s claim for such a benefit is consequently without legal merit and must be denied. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006); Sabonis v. Brown, 6 Vet. App. 426 (1994). SMC SMC is available when, ‘as the result of service-connected disability,’ a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities. Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. § 1114(k)-(s)). Section 1114(k) provides several distinct ways for a veteran, “as the result of service-connected disability,” to qualify for this rate of SMC, to include, anatomical loss or loss of use of one or more creative organs. 38 U.S.C. § 1114(k). The Veteran seeks a higher rating of SMC for loss of use of a creative organ. SMC is a special statutory award granted in addition to awards based on the schedular evaluations provided by the diagnostic codes in VA’s rating schedule. Claims for SMC, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C. § 1114(k) through (s) and 38 C.F.R. §§ 3.350 and 3.352. SMC is payable at a specified rate if the 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). Impotence is tantamount to loss of use of a creative organ. See 38 C.F.R. § 4.115b, Diagnostic Code 7522. The amount of SMC for loss of use of a creative organ is a non-variable amount and is set by statute. 38 U.S.C. § 1114(k). Accordingly, the appeal must be denied as a matter of law. The benefit of the doubt rule is not for application. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Gastrointestinal Condition to Include IBS The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of IBS and has not had one at any time during the pendency of the claims or recent to the filing of the claims. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board notes that the Veteran has been diagnosed with GERD and was granted service connection for that condition in an October 2018 rating decision. A July 2018 VA examination showed that the Veteran’ gastrointestinal condition was limited to GERD and did not contain a diagnosis of IBS or any other gastrointestinal condition. The Veteran and his representative have not identified or introduced any evidence of record which shows that the Veteran has been diagnosed with any other gastrointestinal condition other than GERD. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Higher Ratings for GERD, ED, and headaches The Veteran has stated that his GERD, ED, and headaches have increased in severity since his 2018 VA examinations. As such, new examinations are warranted. See November 2020 statement in support of claim. The Board notes the Veteran’s November 2020 submission from his vocational consultant but finds that in-person examinations by a qualified medical examiner are necessary to assess the severity of his service connected conditions. As such, remand is necessary.   TDIU The Veteran’s claim for a TDIU is intertwined with his claims for higher ratings for GERD, ED, and headaches because the TDIU issue may be affected by the assignments of the disability ratings. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: Schedule the Veteran for VA examinations to determine the current severity of his gastroesophageal reflux disease (GERD), erectile dysfunction (ED), and headaches. All indicated studies/diagnostic tests must be conducted, and all findings reported in detail. The claims file should be made available and reviewed by the examiner. As to GERD, the examiner should determine whether the Veteran has symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; other symptom combinations productive of severe impairment of health; persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; or any of the above. As to ED, the examiner must specifically provide an opinion whether there is any deformity of the Veteran’s penis. As to headaches, all pertinent pathology (neurological and subjective) found on examination should be noted in the report of the evaluation. Specifically, the examiner should discuss the frequency of the Veteran’s attacks, whether they are characteristic prostrating attacks, and the impact on the Veteran’s economic adaptability, as appropriate. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.