Citation Nr: 21065021
Decision Date: 10/22/21	Archive Date: 10/22/21

DOCKET NO. 20-17 545
DATE: October 22, 2021

ORDER

The claim for an increased initial rating for coronary artery disease (CAD), currently rated as 30 percent disabling prior to January 16, 2020 and 60 percent disabling thereafter, is denied.

The claim for an initial rating higher than 20 percent for diabetes mellitus with diabetic retinopathy is denied.

The claim for an increased rating for osteoarthritis of the right knee with a total knee replacement, rated as 10 percent disabling prior to April 16, 2019, 100 percent disabling from April 16, 2019 to April 30, 2020, and 30 percent disabling from May 1, 2020 is denied.

The claim for a rating higher than 10 percent for degenerative joint disease of the left knee is denied.

The claim for a rating higher than 30 percent for hypertrophic gastritis is denied.

The claim for an initial compensable rating for erectile dysfunction is denied.

An effective date of August 21, 2016, and no earlier, for the award of service connection for CAD is granted.

The claim for an effective date earlier than August 21, 2017 for the award of service connection for erectile dysfunction is denied.

The claim for an effective date earlier than August 21, 2017 for the award of special monthly compensation (SMC) based on loss of use of a creative organ is denied.

REMANDED

The claim for a rating higher than 20 percent for neurological impairment (radiculopathy) of the right lower extremity secondary to a lumbar spine disability, to include restoration of a 40 percent rating from September 18, 2017, is remanded. 

The claim for a rating higher than 20 percent for neurological impairment of the right lower extremity affecting the femoral nerve secondary to diabetes mellitus is remanded. 

The claim for a rating higher than 20 percent for neurological impairment of the left lower extremity affecting the external popliteal and anterior tibial nerve associated with a lumbar spine disability.

The claim for an initial rating higher than 10 percent for neurological impairment of the left lower extremity affecting the femoral nerve secondary to a lumbar spine disability is remanded. 

The claim for service connection for a skin disability of the scalp and forearms, to include as due to exposure to herbicide agents, is remanded.

The claim for entitlement to a total disability rating due to individual unemployability resulting from service-connected disability (TDIU) prior to March 6, 2015 is remanded.

FINDINGS OF FACT

1. Prior to January 16, 2020, the Veteran's CAD manifested a workload of greater than five metabolic equivalents (METs) but not greater than seven METs with left ventricular dysfunction and an ejection fraction of 60 percent; there is no fatigue, angina, dizziness, or syncope and no episodes of acute or chronic congestive heart failure.

2. Beginning January 16, 2020, the Veteran's CAD manifested a workload of greater than three METs but not greater than five METs with fatigue; there is no angina, dizziness, or syncope and no episodes of acute or chronic congestive heart failure.

3. The Veteran's diabetes mellitus requires treatment with hypoglycemic agents, insulin injections, and a restricted diet; there is no regulation of occupational or recreational activities by a medical professional and no symptomatic diabetic retinopathy. 

4. The Veteran's osteoarthritis of the right knee with total knee replacement manifests painful restricted motion with flexion to 120 degrees and full extension; there is no recurrent subluxation, lateral instability, or patellar instability, and no ankylosis, disability of the meniscus or cartilage, or impairment of the tibia or fibula. 

5. The Veteran's degenerative joint disease of the left knee manifests painful restricted motion with flexion to 120 degrees and full extension; there is no recurrent subluxation, lateral instability, or patellar instability, and no ankylosis, disability of the meniscus or cartilage, or impairment of the tibia or fibula. 

6. The Veteran's hypertrophic gastritis manifests multiple small eroded or ulcerated areas and reflux without severe hemorrhage; there is no impairment of health manifested by anemia and weight loss with recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. 

7. The Veteran's erectile dysfunction is associated with diabetes mellitus without deformity of the penis; the Veteran is in receipt of SMC based on loss of use of a creative organ.

8. Service connection for CAD was granted in a July 2018 rating decision with an effective date of August 21, 2017. 

9. VA did not deny a claim for compensation for ischemic heart disease between May 3, 1989 and August 31, 2010, the effective date of the liberalizing law adding the disability to 38 C.F.R. § 3.309(e); the Veteran did not file a claim for entitlement to service connection for CAD prior to August 21, 2017.

10. The Veteran's claim for entitlement to service connection for erectile dysfunction was received on August 21, 2017.

11. The award of service connection for SMC was based on the diagnosed erectile dysfunction which was not service connected prior to August 21, 2017.  

CONCLUSIONS OF LAW

1. The criteria for increased initial rating for CAD, currently rated as 30 percent disabling prior to January 16, 2020 and 60 percent disabling thereafter, are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7005.

2. The criteria for an initial rating higher than 20 percent for diabetes mellitus with diabetic retinopathy are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.119, Diagnostic Code 7913.

3. The criteria for higher ratings for osteoarthritis of the right knee with total knee replacement, rated as 10 percent disabling prior to April 16, 2019, 100 percent disabling from April 16, 2019 to April 30, 2020, and 30 percent disabling from May 1, 2020, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5055, 5256-5262 (2020 & 2021).

4. The criteria for a rating higher than 10 percent for degenerative joint disease of the left knee are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256-5262 (2020 & 2021).

5. The criteria for a rating higher than 30 percent for hypertrophic gastritis are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, Diagnostic Codes 7304, 7307.

6. The criteria for an initial compensable rating for erectile dysfunction are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.115b, Diagnostic Code 7522.

7. The criteria for an effective date of August 21, 2016, and no earlier, for the award of service connection for CAD are met. 38 U.S.C. § 5110; 38 C.F.R. § 3.155 (2014), 38 C.F.R. §§ 3.114, 3.400, 3.816 (2021).

8. The criteria for an effective date earlier than March 16, 2007 for the award of service connection for diabetes mellitus are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.159, 3.400.

9. The criteria for an effective date earlier than September 13, 2010, for the award of SMC based on the loss of use of a creative organ are not met.  38 U.S.C. §§ 1114(k), 5110; 38 C.F.R. §§ 3.151, 3.400, 3.350(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1963 to September 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from November 2016, July 2018, and January 2019 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO).

  

Increased Rating

Disability evaluations 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 his 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.

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations at any point during the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59; see also Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021) (ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis).

1. Entitlement to an increased initial rating for CAD, currently rated as 30 percent disabling prior to January 16, 2020 and 60 percent disabling thereafter.

Service connection for CAD was granted in a July 2018 rating decision with an initial 30 percent evaluation assigned effective August 21, 2017. An increased 60 percent evaluation was awarded in a February 2020 rating decision effective January 16, 2020. The Veteran contends that higher ratings are warranted as his heart disease is productive of more severe functional impairment throughout the initial claims period. 

As a preliminary matter, the Board notes that VA has issued a final rule amending the criteria for evaluating disabilities of the cardiovascular system.   86 Fed. Reg. 54089 (September 30, 2021).  These amendments, however, are not effective until November 14, 2021.  Id.  Thus, they are not for application in this appeal.  

The Veteran's CAD is rated under Diagnostic Code 7005 pertaining to arteriosclerotic heart disease.  Prior to January 16, 2020, the disability is rated as 30 percent disabling with a 60 percent evaluation assigned thereafter. Under Diagnostic Code 7005, CAD resulting in workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray, is rated 30 percent disabling. CAD resulting in more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent, is rated 60 percent disabling. CAD resulting in chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent, is rated 100 percent disabling. 38 C.F.R. § 4.104.  

For rating diseases of the heart, one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for rating, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shovelling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note (2). 

The Board finds that higher ratings are not warranted for the Veteran's CAD at any point during the initial claims period. Prior to January 16, 2020, the disability most nearly approximates the current 30 percent evaluation based on symptom presentation, MET levels, and ejection fraction percentages. There is no evidence of congestive heart failure and treatment records from the Veteran's private cardiologist are negative for complaints of dyspnea, fatigue, angina, dizziness, or syncope associated with heart disease. The Veteran denied experiencing cardiac symptoms during a November 2017 VA examination, and dyspnea was the only symptom noted by a May 2018 VA examiner. The Veteran's cardiologist also referred to the Veteran's CAD as mild in December 2016 and stated that he was doing "just fine" from a cardiac standpoint. These findings are all consistent with the initial 30 percent evaluation. 

The results of medical testing during the initial claims period prior to January 16, 2020 are also consistent with a 30 percent rating. A private echocardiogram in June 2016 demonstrated an ejection fraction of 60 percent with mild concentric left ventricular hypertrophy. A year later, a May 2018 echocardiogram indicated an improved ejection fraction at 65 percent. Similarly, the Veteran's interview based METs test results are consistent with a 30 percent evaluation. The May 2018 VA examiner estimated that the Veteran's METs workload was greater than five METs but not greater than seven METs with dyspnea. These test results are all contemplated by a 30 percent rating under Diagnostic Code 7005. 

During the period beginning January 16, 2020, the Veteran's CAD is rated as 60 percent disabling. A January 2020 VA examiner estimated that the Veteran's METs workload had worsened to greater than three, but not greater than five due to heart disease. This finding is specifically contemplated by a 60 percent evaluation under Diagnostic Code 7005. There is no evidence of a METs workload less than three, an ejection fraction less than 30 percent, or chronic congestive heart failure in any of the competent evidence dating from January 16, 2020. As such, the Veteran does not manifest any of the criteria associated with a maximum 100 percent evaluation and a higher rating is not warranted. 

The Board has also considered the Veteran's lay statements that his symptoms and manifestations of CAD warrant an increased rating, but notes that he has not provided any specific argument in support of the claim for a higher initial evaluation. The Veteran is also not competent to state that the symptoms he may experience are consistent with worsening left ventricular functioning or lower METs workloads.  Questions of competency notwithstanding, the Board assigns more probative weight to the objective medical test results and opinions from medical professionals. Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). The Board has considered the Veteran's contentions, but finds that the medical evidence, including objective test results from multiple echocardiograms and cardiac examiners, is more probative regarding the severity of the service-connected CAD.  

The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none and the Veteran has not argued otherwise. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim and it is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21.

2. Entitlement to an initial rating higher than 20 percent for diabetes mellitus with diabetic retinopathy.

Entitlement to service connection for diabetes mellitus was awarded in an October 2016 Board decision. The award of service connection was implemented in a November 2016 rating decision with an initial 20 percent evaluation assigned effective February 1, 2007. The November 2016 rating decision also implemented an award of service connection for diabetic retinopathy, which was rated as part of the overall diabetic process, i.e., a separate rating was not assigned for the retinopathy. 

The Veteran's diabetes mellitus is rated under Diagnostic Code 7913. This diagnostic code provides that when diabetes mellitus requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet, a 20 percent evaluation is merited. When insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) are required, it is evaluated as 40 percent disabling. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately rated, is rated 60 percent disabling. Diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions, requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913.

Note (1) following the rating criteria provides that compensable complications of diabetes mellitus are rated separately unless they are used to support a total disability rating. Id. at Note (1). The Board notes that the Veteran is service connected for erectile dysfunction and neurological impairment of the right lower extremity as secondary to diabetes mellitus. The appropriate ratings for these diabetic complications will be discussed later in this decision. The Veteran is also service connected for diabetic retinopathy, but the competent evidence of record is negative for symptomatic manifestations of retinopathy at any time during the initial claims period. The Veteran's diabetic retinopathy is therefore a noncompensable complication of diabetes and is considered part of the diabetic process under Diagnostic Code 7913 in accordance with Note (1). 

The criteria for ratings higher than 20 percent for diabetes mellitus are conjunctive not disjunctive. This means there must be insulin dependence and restricted diet and regulation of activities. "Regulation of activities" is defined by Diagnostic Code 7913 as the "avoidance of strenuous occupational and recreational activities." Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007).  

After review of the evidence of record, the Board finds that the Veteran's diabetes mellitus does not meet the criteria associated with an increased evaluation.  Although the record establishes that the Veteran's diabetes mellitus is treated with hypoglycemic agents, insulin and a restricted diet, the evidence does not establish regulation of activities.  Private and VA treatment records do not document any instance where the Veteran's diabetic care providers advised him to avoid strenuous occupational and recreational activities due to diabetes mellitus. In fact, the Veteran's private diabetic care provider has repeatedly urged him to increase his activities and exercise more. For example, in April 2014, the Veteran's private physician specifically cleared the Veteran for exercise and urged him to lose weight through diet and exercise. 

The Board has considered the Veteran's statements and contentions, but he has never stated that his occupational or recreational activities are regulated by his diabetes care providers. Furthermore, any lay opinion expressed by the Veteran as to whether certain activities would cause complications and risks associated with the control of his diabetes mellitus and whether such activities should be regulated, cannot be accepted as competent evidence in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). The competent evidence establishes that the Veteran's occupational and recreational activities have not been restricted at any time during the claims period due to diabetes mellitus.  

The record also does not establish that the Veteran's disability meets the criteria associated with a higher rating under Diagnostic Code 7913. There is no lay or medical evidence of ketoacidosis or hypoglycemic reactions requiring hospitalization. Review of the Veteran's medical treatment records further demonstrates that he does not visit his diabetic care provider twice a month. The Veteran's diabetes mellitus has also only required oral hypoglycemic agents or one daily injection of insulin. Thus, an increased rating under Diagnostic Code 7913 is not warranted. 

Finally, while there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected diabetes mellitus, the evidence shows no distinct periods of time during the appeal period when the Veteran's service-connected diabetes mellitus varies to such an extent that a rating greater or less than the initial 20 percent is warranted. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 

3. Entitlement to an increased rating for osteoarthritis of the right knee with total knee replacement, rated as 10 percent disabling prior to April 16, 2019, 100 percent disabling from April 16, 2019 to April 30, 2020, and 30 percent disabling from May 1, 2020.

4. Entitlement to a rating higher than 10 percent for osteoarthritis of the left knee.

Service connection for degenerative joint disease of the right knee was granted in a November 2007 rating decision with an initial 10 percent evaluation assigned effective February 1, 2007. Service connection for degenerative joint disease of the left knee was awarded in a November 2012 rating decision, also evaluated as 10 percent disabling and effective from February 1, 2007. In July 2018, the 10 percent rating assigned the right knee disability was continued, though the characterization of the disability was changed from degenerative joint disease to osteoarthritis. The Veteran underwent a right total knee replacement surgery on April 16, 2019 and the ratings assigned his right knee were changed in a February 2020 rating decision. At that time, a temporary 100 percent evaluation was assigned from April 16, 2019 to April 30, 2020 with a 30 percent rating effective from May 1, 2020. The Veteran contends that higher ratings are warranted for his both his knee disabilities as they continue to impair his ability sit, walk, and stand for extended periods. 

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 

If a law or regulation changes during a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

The Veteran's right knee disability is currently rated under Diagnostic Code 5055, pertaining to a knee replacement (prosthesis). The former and current versions of this diagnostic code are identical aside from the length of time provided for a total (100 percent) evaluation following the implantation of a prosthesis. The former version of the code allowed for a full year of a total rating while the current version only provides for four months of a total rating. The Veteran's right knee replacement was assigned a 100 percent evaluation under the former version of Diagnostic Code 5055 from April 16, 2019 to April 30, 2020. This rating will not be disturbed. Thus, with respect to the right knee, the Board must determine whether a rating higher than 10 percent is appropriate prior to April 16, 2019 and whether a rating higher than 30 percent is appropriate from May 1, 2020. 

The Board will first turn to the ratings for the Veteran's left knee throughout the claims period and the right knee prior to May 1, 2020. The knees are currently rated as 10 percent disabling for arthritis with limitation of motion with reference to Diagnostic Codes 5010 and 5260. The former version of Diagnostic Code 5010 characterizes the disability as arthritis, due to trauma, while the current version refers to the condition as post-traumatic arthritis. The former version of Diagnostic Code 5010 provides for rating the condition as degenerative arthritis under Diagnostic Code 5003. The rating criteria of Diagnostic Code 5003 was unchanged following the regulatory change and provides for a rating of 10 percent for each major joint or group of minor joints affected by noncompensable limitation of motion. An increased rating of 20 percent is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The medical evidence of record (including X-rays) documents arthritis with some limitation of motion of both knees, but each disability affects only one major joint: the right or left knee. Thus, increased 20 percent ratings are not warranted under Diagnostic Code 5003 or 5010 at any time during the claims period for either the right or left knee.

Diagnostic Code 5003 also provides that degenerative arthritis established by X-ray findings is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is some limitation of motion of the specific joint that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The Veteran is currently in receipt of a 10 percent rating for the left knee throughout the claims period and a 10 percent rating for the right knee prior to his total knee replacement on April 16, 2019. This is the maximum evaluation based on noncompensable limitation of motion and higher ratings are not possible for the knees under Diagnostic Code 5003. 

The current version of Diagnostic Code 5010 states to rate the affected joint as limitation of motion, dislocation, or other specified instability. The Board will therefore address whether higher ratings are possible for each knee under the former or current versions of Diagnostic Codes 5257 (other impairment of the knee with recurrent subluxation or instability), 5260 (limitation of flexion), and/or 5261 (limitation of extension). Before reaching the specifics of those ratings, however, the Board notes that the Veteran's 10 percent ratings for the knees appear to have been initially assigned in accordance with 38 C.F.R. § 4.59 which provides for a minimum compensable rating, i.e., a 10 percent rating, under Diagnostic Code 5260 based on limitation of flexion. The regulation does not provide any mechanism for a rating higher than 10 percent. Therefore, increased ratings are not warranted based on the diagnostic codes pertaining to range of motion of the knee or under the provisions of 38 C.F.R. § 4.59.

The diagnostic codes pertaining to limitation of motion in the knee were not altered by the regulatory change on February 7, 2021. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Limitation of flexion of a leg warrants a 10 percent evaluation if flexion is limited to 45 degrees and a 20 percent evaluation is assigned if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees is evaluated as 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of a leg warrants a 10 percent evaluation when it is limited to 10 degrees and a 20 percent evaluation when it is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261.

The Veteran's right and left knees manifest painful and limited motion that is not compensable under the rating criteria. Bilateral knee motion was most restricted at a VA examination in January 2018 when flexion was measured to 120 degrees with full extension to 0 degrees. Flexion limited to 120 degrees with full extension is noncompensable under the rating criteria. The Board also notes that an October 2019 examination at the VA Medical Center (VAMC) demonstrated limitation of motion that was characterized by the physician as only "mildly limited flexion." The Veteran's right and left knee motion is therefore not consistent with a rating higher than 10 percent based on limitation of motion. 

The Board has also considered whether a higher rating is warranted based on functional factors. As noted above, the Veteran's knees have not manifested limitation of motion that is compensable under the diagnostic codes for rating flexion and extension at any time during the claims period. VA examinations performed in January 2018 and January 2020 all found that the Veteran had noncompensable limitation of motion without additional functional loss following repetitive testing. The January 2018 examiner was not able to comment on whether the Veteran would experience additional loss of motion or impairment with repeated use, but the January 2020 VA examiner specifically found that pain, weakness, fatigability, or incoordination did not significantly limit the Veteran's functional ability with repeated use over time. The Board has also considered the Veteran's statements; he has consistently reported that his knee pain results in difficulties walking, standing, sitting, and climbing stairs over time. This type of functional impairment is contemplated by the current 10 percent ratings assigned the Veteran's kneeswhich are specifically rated based on restricted painful motion resulting in functional limitations. The Board therefore finds that the Veteran's knees manifest flexion that is limited at most to 120 degrees and full extension even with consideration of all functional factors. Thus, a rating higher than 10 percent is clearly not appropriate under the criteria pertaining to limitation of motion. 38 C.F.R. § 4.71a. 

The Board will now address whether a higher or separate rating is warranted for instability of either knee under Diagnostic Code 5257, pertaining to impairment of the knee based on recurrent subluxation or instability. This diagnostic code underwent substantial changes in the 2021 revision. The former version of Diagnostic Code 5257 provides that a 10 percent evaluation is assigned for slight instability, a 20 percent evaluation is assigned for moderate instability, and a 30 percent evaluation is assigned for severe instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). 

Under the current version of Diagnostic Code 5257 recurrent subluxation or lateral instability warrants a maximum 30 percent evaluation for an unrepaired or failed repair of a complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent evaluation is assigned for one of the following: (a) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or; (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent evaluation is assigned for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021).

The revised version of Diagnostic Code 5257 also provides specific ratings for patellar instability. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). A 30 percent evaluation is warranted with instability involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Instability involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker is rated as 20 percent disabling. And finally, instability involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker is rated as 10 percent disabling. Note (2) following this criteria states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id.

The Board finds that the Veteran's knees do not manifest recurrent subluxation, lateral instability, or patellar instability. The Veteran requested and was provided knee braces (characterized as "knee sleeves") from his VA provider in April 2013, but there were no medical findings of knee instability at that time; the sleeves were provided per the Veteran's request. Similarly, there is no competent medical evidence of knee instability or subluxation during the claims period. VA examiners in January 2018 and January 2020 both found that the Veteran's knees were stable with no history of recurrent subluxation or instability. Although the Veteran has experienced multiple falls during the claims period, there is no competent evidence establishing that the falls were the result of instability of either knee. For example, in October 2019, the Veteran reported during his annual examination at the VAMC that he fell recently injuring his face and knee. However, this fall was caused by his heel catching his step, not because of knee instability. The Veteran also underwent a right total knee replacement in April 2019 due, in part, to damage incurred in multiple falls in January 2019. Again, however, there is no competent evidence of record that these falls were because of the knee. Instead, it appears the Veteran incurred additional damage to his knees because of the falls. Finally, there is no competent evidence of a knee sprain, ligament tear, or involvement of the patellofemoral complex with instability. The Veteran underwent a right knee arthroscopy in September 2011, but this procedure was performed to repair the right knee cartilage, not the ligaments. Similarly, there is no competent evidence the Veteran's April 2019 right total knee replacement surgery was performed in response to any deficiency of the patellofemoral complex. X-rays during the claims period establish only degeneration of the internal workings of the knee, which is compensated by the current 10 percent ratings for arthritis. In short, the evidence does not establish the presence of subluxation or instability of either knee and a separate or increased rating is not appropriate under the former or current version of Diagnostic Code 5257. 

With respect to Diagnostic Code 5258 pertaining to dislocation of the semilunar cartilage, the Board acknowledges that the Veteran underwent a right knee arthroscopy in September 2011 to repair a meniscus tear and impairment of the cartilage. Diagnostic Code 5258 was not altered by the recent regulatory change and provides for a 20 percent evaluation for dislocation of the semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. The Veteran's 2011 right knee surgery was performed to repair a meniscus tear and patellar cartilage. However, this surgery occurred outside the claims period currently before the Board and there is no evidence of a current meniscal condition of either knee. There is also no evidence of knee dislocation or locking. While small joint effusions were observed during March 2019 bilateral knee X-rays, it was associated with degenerative changes throughout the knees. There is no competent evidence of semilunar cartilage involvement, and the Board cannot conclude that the knee disabilities most nearly approximate frequent episodes of locking, dislocation, and effusion into the joints as contemplated by a rating under Diagnostic Code 5258. Thus, a higher or separate rating under this diagnostic code is not warranted. 

The Board has also considered whether ratings are possible under Diagnostic Codes 5256, 5259, and 5262, but finds that they are not for application in this case. These codes provide for ratings with a showing of ankylosis, removal of the semilunar cartilage, and impairment of the tibia or fibula. The medical evidence is negative for findings associated with these specific diagnostic codes, nor has the Veteran specifically alleged symptomatology producing the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021).  The Board therefore finds that higher or separate ratings under these other diagnostic codes are not appropriate. 

The Board must now determine whether a rating in excess of 30 percent is warranted for the Veteran's right knee during the period beginning May 1, 2020. As noted above, the Veteran underwent a right total knee replacement on April 16, 2019 and his right knee is now rated under Diagnostic Code 5055 pertaining to the implantation of a knee prosthesis. The former and current version of this diagnostic code provide for a 60 percent evaluation with chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, the knee is rated by analogy to diagnostic codes 5256, 5261, or 5262. A 30 percent evaluation is the minimum evaluation for a knee replacement. 38 C.F.R. § 4.71a, Diagnostic Code 5055. 

The Veteran is currently in receipt of the 30 percent minimum evaluation following a knee replacement under Diagnostic Code 5055. Upon VA examination in January 2020, the Veteran was found to have an intermediate degree of residual knee weakness and pain on motion. In such cases, Diagnostic Code 5055 provides for rating the knee by analogy to diagnostic codes 5256, 5261, or 5262. However, as discussed above, the Veteran's right knee manifests noncompensable limitation of extension under Diagnostic Code 5261 with no evidence of knee ankylosis or impairment of the tibia or fibula under Diagnostic Codes 5256 and 5262, respectively. As such, a rating higher than the current 30 percent is not possible under the other diagnostic codes pertaining to the knee. Additionally, the competent evidence of record does not establish the presence of severe painful motion or weakness of the right knee. Range of motion testing at the January 2020 VA examination was performed without pain and the record does not establish the presence of any knee weakness during the claims period. Thus, a rating higher than 30 percent is not warranted for the Veteran's right knee disability with total knee replacement during the period beginning May 1, 2020 under Diagnostic Code 5055 or the other criteria for rating the knee. 

In sum, the Veteran's left knee disability is appropriately rated as 10 percent disabling for degenerative joint disease with painful limited motion throughout the claims period. His right knee is also appropriately rated as 10 percent disabling for osteoarthritis and limited motion prior to April 16, 2019, with a 100 percent evaluation from April 16, 2019 and a 30 percent rating from May 1, 2020 assigned for residuals of a total knee replacement. Separate or higher ratings are not warranted under any of former or current criteria pertaining to the knee. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21.

5. Entitlement to a rating higher than 30 percent for hypertrophic gastritis.

Service connection for gastritis was awarded in a November 2007 rating decision with an initial noncompensable evaluation assigned effective April 23, 2007. The January 2019 rating decision on appeal recharacterized the Veteran's disability as hypertrophic gastritis and granted an increased 30 percent evaluation effective October 4, 2017. The Veteran contends that a higher rating is warranted for his gastritis as the condition interferes with his employment. 

The Veteran's gastritis was originally rated by analogy under Diagnostic Code 7304 for gastric ulcers. This diagnostic code does not include a 30 percent rating, but a 40 percent rating is assigned for a moderately severe ulcer, with less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year, is rated 40 percent disabling. A severe ulcer, with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis, or melena, with manifestations of anemia and weight loss productive of definite impairment of health, is rated 60 percent disabling. 38 C.F.R. § 4.114. 

In the January 2019 rating decision on appeal, the agency of original jurisdiction (AOJ) determined that Diagnostic Code 7307 more closely matched the symptoms and impairment associated with the Veteran's service-connected disability, as it specifically pertains to hypertrophic gastritis. The current 30 percent evaluation was assigned under this diagnostic code for chronic hypertrophic gastritis with multiple small eroded or ulcerated areas, and symptoms. A maximum 60 percent evaluation is assigned for chronic hypertrophic gastritis with severe hemorrhages, or large ulcerated or eroded areas. Id. 

The medical evidence dated during the relevant claims period includes diagnoses of both a gastric ulcer and hypertrophic gastritis, indicating symptomatology associated with both Diagnostic Code 7304 and 7307. The Rating Schedule provides that evaluations under Diagnostic Codes 7301 to 7329 will not be combined with each other. A single rating will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. Id. The Board must therefore consider the criteria of both applicable diagnostic codes and assign the highest possible single disability evaluation that captures the "predominant disability picture." 

The Board finds that the currently assigned 30 percent evaluation under Diagnostic Code 7307 is the highest possible rating available. At VA examinations dated in January 2018 and November 2018, the Veteran reported that he experienced symptoms of abdominal pain, heartburn, reflux, nausea, and regurgitation. His symptoms are "slightly improved" with daily use of various antacid medications. He also stated during a September 2020 vocational assessment that he experienced unpredictable abdominal pain, nausea, and vomiting due to gastritis. The November 2018 VA examiner diagnosed both a gastric ulcer and hypertrophic gastritis. The gastritis was characterized as chronic, with multiple small eroded or ulcerated areas. This degree of gastritis, along with the Veteran's reported symptoms, is specifically contemplated by the current 30 percent rating under Diagnostic Code 7307. That diagnostic code provides for a maximum 60 percent rating, but it requires the disability most nearly approximate a chronic disease with severe hemorrhage with large ulcerated or eroded areas. There is no evidence that the Veteran's disability most nearly approximates these criteria; there are no findings or complaints of abdominal hemorrhage and the Board notes that private and VA treatment records are negative for specific complaints or treatment related to the service-connected gastritis. An evaluation higher than 30 percent is therefore not appropriate under Diagnostic Code 7307.

The Board has also considered whether a higher rating is possible under Diagnostic Code 7304 for the Veteran's gastric ulcer. Increased 40 and 60 percent evaluations are possible under this diagnostic code with ulcers that are moderately severe to severe with impairment of health and symptoms including anemia, weight loss, periodic vomiting, recurrent hematemesis or melena, and recurrent incapacitating episodes averaging 10 days or more at least four times a year. None of the competent evidence dated during the claims period indicates the presence of impairment of health, anemia, weight loss, or recurrent hematemesis or melena due to the Veteran's disability. The November 2018 VA examiner recorded the Veteran's complaints of "periodic" vomiting, and identified the presence of incapacitating episodes of symptoms that lasted between one to nine days up to four times a year. The examiner also specified that the Veteran's recurring episodes were not severe, and his abdominal pain was relieved by standard ulcer therapy. The September 2020 vocational assessment includes complaints of nausea and vomiting that are characterized as "unpredictable" and "very distracting," but does not otherwise quantify the episodes of impairment experienced by the Veteran. Based on the above, particularly the lack of recurrent incapacitating episodes averaging 10 days or more and the absence of any direct impairment of health related to the Veteran's disability, the Board finds that the Veteran's ulcer and gastritis condition do not most nearly approximate a higher rating under Diagnostic Code 7304 for gastric ulcers. 

The Board therefore concludes that the Veteran's hypertrophic gastritis most nearly approximates the symptoms and criteria contemplated by a 30 percent evaluation under Diagnostic Code 7307. Although the Veteran is also diagnosed with a gastric ulcer, the presentation of his disability more closely aligns with the criteria associated with hypertrophic gastritis and its associated diagnostic code provides for a higher evaluation for the service-connected disability. The Board has also considered the doctrine of reasonable doubt but has determined that it is not applicable as the evidence establishes that a higher rating is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § §§ 4.7, 4.21.

6. Entitlement to an initial compensable rating for erectile dysfunction.

Service connection for erectile dysfunction was awarded in the July 2018 rating decision on appeal as secondary to diabetes mellitus. An initial noncompensable (0 percent) evaluation was assigned effective August 21, 2017. The Veteran was also awarded SMC based on the use of a creative organ in association with his erectile dysfunction. 

As a preliminary matter, the Board notes that VA has issued a final rule amending the criteria for evaluating disabilities of the genitourinary system.   86 Fed. Reg. 54081 (September 30, 2021).  These amendments, however, are not effective until November 14, 2021.  Id.  Thus, they are not for application in this appeal.  

Erectile dysfunction is not specifically listed in the Rating Schedule; however, when an unlisted condition is encountered, it is permissible to rate the disability under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27. As such, a compensable evaluation is possible for service-connected erectile dysfunction under Diagnostic Code 7522, which provides for a 20 percent rating for deformity of the penis with loss of erectile power. 

The term "deformity" is not defined in the rating criteria, and it is therefore given its ordinary meaning. See Prokarym v. McDonald, 27 Vet. App. 307, 310 (2015). In medical terminology, a deformity is a distortion of any part or general disfigurement of the body. See Dorland's Illustrated Medical Dictionary 478 (32 ed. 2012). A deformity under Diagnostic Code 7522 means either an internal or external distortion of the penis and an internal distortion must be considered. Williams v. Wilkie, 30 Vet. App. 134, 138 (2018).

The evidence establishes that the Veteran's erectile dysfunction results in an inability to achieve and maintain an erection. A private doctor opined in June 2013 that the dysfunction was due to diabetes mellitus and associated vascular occlusion. VA examiners in September 2017 and January 2020 confirmed the diagnosis of erectile dysfunction, but specifically found that the Veteran did not manifest any deformity of the penis. Thus, while the evidence shows that the Veteran's diabetes has affected the blood vessels of the penis, there is no lay or medical evidence of deformity or distortion, either internal or external. As such a compensable rating is not warranted for erectile dysfunction during the initial claims period. The Board has carefully considered the Veteran's contentions that he is unable to obtain and maintain an erection, but these symptoms are compensated by his award of SMC and do not provide a basis to assign a compensable rating under Diagnostic Code 7522.

Effective Date

In general, the effective date of an award of disability compensation following the grant of entitlement to service connection shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i).

7. Entitlement to an effective date earlier than August 21, 2017 for the award of service connection for CAD.

Service connection for CAD (a form of ischemic heart disease) was awarded in the July 2018 rating decision on appeal. An initial 30 percent evaluation was assigned effective from August 21, 2017, the date the AOJ determined it received a claim for service connection from the Veteran. The Veteran contends that an earlier effective date from June 21, 2013 is warranted as he filed an informal claim for service connection at that time.

In this case, the July 2018 award of service connection for CAD was based on a liberalizing law pertaining to diseases associated with exposure to certain herbicide agents. See 38 C.F.R. § 3.309(e) (listing ischemic heart disease as a disease that shall be service connected even though there is no record of such disease during service for certain veterans, including those who were exposed to herbicide agents during service in the Republic of Vietnam). Ischemic heart disease was added to the list of diseases associated with exposure to certain herbicide agents effective August 31, 2010. See 75 Fed. Reg. 53202 (Aug. 31, 2010).  

Effective dates of certain awards of service connection are governed pursuant to the orders of a United States district court in the class-action case. Nehmer v. United States Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal. May 17, 1991); 38 C.F.R. § 3.816. The covered diseases are listed in 38 C.F.R. § 3.816(b)(2) and are any "disease for which the Secretary of Veterans Affairs has established a presumption of service connection pursuant to the Agent Orange Act of 1991...other than chloracne." Ischemic heart disease is included in the diseases covered by 38 C.F.R. § 3.816 and the final rule made clear that the effective dates of awards of ischemic heart disease under 38 C.F.R. § 3.309(e) are governed by the Nehmer provisions. See 75 Fed. Reg. at 53203.

Where a Nehmer class member is entitled to disability compensation for a covered herbicide disease, and the claim was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section, which pertains to claims filed within one year from the date of separation from service. See 38 C.F.R. § 3.816(c)(2). As noted above, ischemic heart disease was added to the list of diseases associated with exposure to certain herbicide agents under 38 C.F.R. § 3.309(e) effective August 31, 2010.  

A claim will be considered a claim for compensation for a particular covered herbicide disease if: (i) the claimant's application and other supporting statements and submission may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or (ii) VA issued a decision on the claim, between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. Id. 

Thus, under the Nehmer effective date provisions, the Board must analyze whether a claim for CAD/ischemic heart disease was filed prior to August 21, 2017 (the date identified by the RO as the first receipt of a claim for a heart disability) and whether VA denied compensation for ischemic heart disease between May 1989 and August 31, 2010.

Review of the claims file clearly establishes that VA did not deny a claim for compensation for ischemic heart disease in the Veteran's case between May 3, 1989 and August 31, 2010, the effective date of the liberalizing law adding the disability to 38 C.F.R. § 3.309(e). Prior to the July 2018 rating decision granting service connection for CAD, VA had never issued a decision addressing whether service connection was warranted for ischemic heart disease.  Under these circumstances, the effective date of the award of service connection shall be determined in accordance with either 38 C.F.R. § 3.114 or § 3.400.  See 38 C.F.R. § 3.816(c)(4).

Therefore, the Board must first determine whether a claim for ischemic heart disease was received prior to August 21, 2017. Regulations defining a "claim" were revised effective March 24, 2015. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The revision eliminated informal claims and required that all VA claims be made on specific forms. In this case, the Veteran contends that he filed an earlier informal claim for service connection for CAD in June 2013, and the Board must therefore consider whether an informal claim for compensation was received under the former version of the regulations. 

The Veteran contends that VA received an informal claim for service connection on June 21, 2013, the date he submitted a letter from a private physician. The letter summarized the Veteran's current disabilities, linked many of them (including CAD) to various events of active service such as herbicide agent exposure, and stated that it was intended to "assist the Veteran with defining and explaining any applicable injuries or illnesses on which benefits will be applied for." The Veteran maintains that this private medical report constitutes an informal claim for service connection for CAD. 

The Board disagrees and finds that the June 2013 private medical letter is not an informal claim for service connection for CAD. Prior to March 24, 2015, a "claim" was defined in the VA regulations as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p) (2014). Any communication from or action by a Veteran indicating intent to apply for a benefit under laws administered by VA could be considered an informal claim. 38 C.F.R. § 3.155 (2014). The June 2013 medical report was not accompanied by any letter, note, or other communication from the Veteran, nor did the private doctor state that it was intended to initiate a claim for VA benefits. In fact, the private physician noted that it was "the intent of the undersigned examiner to provide the VA reader with acceptable objective data...as the basis on which service connection will be claimed by the Veteran as new issues..." (emphasis added). The June 2013 report therefore explicitly stated that it was submitted to aid the Veteran in future claims, meaning claims that had not yet been filed. Additionally, the Board notes that the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999). Similarly, the mere presence of a disability does not establish intent on the part of the Veteran to seek service connection for that condition. KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1995). As the June 2013 medical evidence did not indicate an intent on the part of the Veteran to initiate a claim for a VA benefit, it cannot serve as an informal claim for service connection for CAD. 

The Veteran argues that VA has already acknowledged the June 2013 private medical report is an informal claim for service connection by referring the matter to the AOJ in previous Board decisions. Again, the Board disagrees with this characterization of the facts. In its February 2014 remand, the Board acknowledged receipt of the June 2013 private medical report and referred the matter to the AOJ to seek clarification from the Veteran as to whether he intended to use the report to "raise new claims for service connection." Thus, the Board did not conclude that the June 2013 report was an informal claim for benefits; rather, it noted the evidence had been submitted and there was ambiguity surrounding whether the Veteran intended it to support new claims for compensation. The matter of clarification by the AOJ was referred by the Board again in March 2015 and October 2016. In December 2016, the AOJ contacted the Veteran and notified him that all claims for benefits now required a standardized claims form. The Veteran's representative responded with a January 2017 letter specifically stating that the Veteran "does not intend to file a new claim." 

Six months later, in response to an email request for information from the representative, the AOJ wrote that the Veteran had "not submitted a formal claim for Service Connected Disability Compensation" for CAD and noted that it had sent the Veteran a letter in December 2016 in response to the Board's requests for clarification. As the representative responded in January 2017 that the Veteran did not intend to file a new claim, the AOJ found that the clarification sought by the Board was resolved as the Veteran did not intend to file a new claim with the submission of the June 2013 medical evidence. There was no further communication with the Veteran or his representative on this matter until August 21, 2017, when VA received the Veteran's formal claim for service connection for CAD. The claim was accompanied by a statement from the Veteran's representative noting that an effective date of June 2013 was requested for the award of any benefits, as they were raised in the record at that time. However, the representative's current attempt to characterize the June 2013 medical evidence as an informal claim for benefits is inconsistent with the representative's response to the December 2016 correspondence from the AOJ. The Veteran may wish to retroactively establish that the submission of the June 2013 private medical evidence was an informal claim for service connection, but as noted above, the actions of the Veteran and his representative in 2013 and thereafter do not establish an intent to intent to apply for a benefit under laws administered by VA. See 38 C.F.R. § 3.155 (2014). The Board therefore finds that the June 2013 private medical report does not constitute an informal claim for service connection for CAD and the date of claim in this case is August 21, 2017the date VA received the Veteran's formal claim for service connection. 

Having determined the date of claim, the Board notes that if a claim is reviewed at the request of a claimant and the claim is received within one year from the effective date of a liberalizing law or VA issue, benefits may be authorized from the effective date of the law or VA issue.  38 C.F.R. § 3.114 (a)(1).  If a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3).  

Here, the liberalizing legislation establishing a presumption of service connection for ischemic heart disease for Veterans who were presumptively exposed to Agent Orange was effective August 31, 2010.  The Veteran's claim was received on August 21, 2017. The RO has granted service connection from the date of receipt of that claim.  However, in light of section 3.114, the Board finds that an effective date one year prior to the date of receipt of claim is warranted, as the award of service connection was made pursuant to the liberalizing law for adding ischemic heart disease to the list of diseases presumptively associated with exposure to Agent Orange.

8. Entitlement to an effective date earlier than August 21, 2017 for the award of service connection for erectile dysfunction.

9. Entitlement to an effective date earlier than August 21, 2017 for the award of SMC based on loss of use of a creative organ.

The Veteran contends that an earlier effective date is warranted for the award of service connection for erectile dysfunction and the accompanying award for SMC based on loss of use of a creative organ. Service connection for erectile dysfunction and entitlement to SMC were both granted by the AOJ in a July 2018 rating decision with an effective date of August 21, 2017the date of receipt of the initial claim for service connection for erectile dysfunction. 

The Veteran's contentions with respect to these effective dates is identical to those made in support of the claim for an earlier effective date for service connection for CAD. The Veteran contends that a June 2013 private medical report received by VA on June 21, 2013 serves as an informal claim for service connection for the disabilities addressed therein, including erectile dysfunction. The question of whether the June 21, 2013 medical evidence serves as an informal claim for service connection is thoroughly addressed above and the Board concluded that the 2013 private medical report did not constitute an informal claim for VA service connection benefits. There are also no other communications from the Veteran dated prior to August 21, 2017 that indicate an intent to file a claim for benefits for erectile dysfunction. 

The Board notes that erectile dysfunction was granted secondary to diabetes mellitus and that VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability."  Bailey v. Wilkie, 33 Vet. App. 188, 203; Sellers v. Wilkie, 965 F.3d 1328, 1337 (Fed. Cir. 2020) (noting that regulations requiring claimants to submit formal claims do not alter VA's general practice of identifying and adjudicating issues and claims that logically relate to the claim pending before VA).  

The Board has considered whether the claim of service connection for diabetes mellitus reasonably encompassed a claim of service connection for erectile dysfunction.  Chavis v. McDonough, 34 Vet. App. 1 (2021).  At the time the Board awarded service connection for diabetes mellitus, and at the time the RO implemented that award, the claim included diabetic retinopathy but not erectile dysfunction.  Moreover, unlike in Chavis, the Veteran in this case was not pro se and his claim of service connection for diabetes mellitus was not broadly worded.  Although the record on appeal contained notations of erectile dysfunction, it did not clearly attribute the Veteran's erectile dysfunction to diabetes mellitus as opposed to nonservice-connected disabilities.  Regardless, as set forth above, his representative indicated in January 2017 that the Veteran did not intend to file a new claim of service connection for additional disabilities.  See also Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) (noting that "claims based on separate and distinctly diagnosed diseases or injuries must be considered separate and distinct claims"); Gudinas v. McDonough, 34 Vet. App. 25, 31 (2021) (noting that "claims for secondary service connection are not claims for increased compensation and are not part and parcel of a claim for increased compensation for the primary condition").  The Board therefore finds that the Veteran's claim for service connection for erectile dysfunction was received by VA on August 17, 2017.

The applicable regulation in this case is clearthe effective date of an original award of service connection is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i).  The Board therefore finds that the criteria for an effective date earlier than August 21, 2017, for the award of service connection for erectile dysfunction have not been met.  

The July 2018 rating decision also awarded SMC based on the loss of use of a creative organ effective August 21, 2017. The Veteran did not specifically file a claim for entitlement to SMC, but such a claim was inferred by the RO based on the evidence obtained in connection with the claim for service connection for erectile dysfunction. The regulations governing secondary service connection and SMC do not authorize an award of benefits prior to the grant of service connection for the underlying disability, in this case, erectile dysfunction. As discussed above, an effective date earlier than August 21, 2017 is not warranted for the award of service connection for erectile dysfunction. The Board has no statutory or regulatory authority to award service connection for a secondary disability or SMC unless there is a service-connected disability which meets the requirements specified at 38 U.S.C. § 1114(k) and 38 C.F.R. §§ 3.310 and 3.350(a). Therefore, the Board cannot assign an effective date for erectile dysfunction and SMC earlier than August 21, 2017, as the Veteran was not service connected for erectile dysfunction prior to that date.

REASONS FOR REMAND

1. Entitlement to a rating higher than 20 percent for neurological impairment (radiculopathy) of the right lower extremity secondary to a lumbar spine disability, to include restoration of a 40 percent rating from September 18, 2017.

2. Entitlement to a rating higher than 20 percent for neurological impairment of the right lower extremity affecting the femoral nerve secondary to diabetes mellitus.

3. Entitlement to a rating higher than 20 percent for neurological impairment of the left lower extremity affecting the external popliteal and anterior tibial nerve associated with a lumbar spine disability.

4. Entitlement to an initial rating higher than 10 percent for neurological impairment of the left lower extremity affecting the femoral nerve secondary to a lumbar spine disability. 

5. Entitlement to service connection for a skin disability of the scalp and forearms, to include as due to exposure to herbicide agents.

6. Entitlement to TDIU prior to March 6, 2015.

The Board finds that a remand is necessary before a decision may be rendered with respect to the remaining claims on appeal. Regarding the claim for service connection for a skin disability, the Board finds that an additional medical opinion is necessary to determine whether the Veteran's currently diagnosed skin condition is etiologically related to any incident of active service, including his in-service treatment for dermatitis, his presumed exposure to certain herbicide agents in Thailand, and his in-service exposure to various chemicals associated with his duties as a jet engine technician. The record contains two medical opinions addressing the etiology of the claimed skin disability: the first dates from June 2013 and identified chloracne associated with herbicide exposure. The second medical opinion is from a September 2017 VA examination. The VA examiner found that the Veteran did not have an ongoing skin condition (including chloracne) and only diagnosed the presence of acute cellulitis and staph infections. Both medical opinions are of reduced probative value as they are not based on the accurate facts of the case. The June 2013 private examiner does not provide any basis for the conclusion that the Veteran's skin condition is chloracne, to include a description of the Veteran's skin manifestations. The September 2017 VA examiner also did not address the private and VA medical records showing treatment for seborrheic dermatitis. The presence of "scaly scabs" on the Veteran's scalp and skin is noted in the VAMC records as recently as October 2019 and establish the presence of a chronic skin condition during the claims period in contrast to the VA examiner's findings. An addendum VA opinion is therefore necessary to address the etiology of the claimed skin condition with consideration of the accurate facts. 

A remand is also necessary regarding the claims for increased ratings for neurological impairment of the bilateral lower extremities. The Veteran is currently service connected for neurological impairment affecting multiple nerves in his legs. This neurological impairment has been associated with various etiologies including the service-connected lumbar spine disability and service-connected diabetes. However, the evidence (and to some extent the rating decisions and code sheets originating from the AOJ) disagree regarding the specific nerves affected, the severity of the impairment, and the specific symptoms attributable to each nerve. The Veteran was provided a VA examination of the peripheral nerves in August 2021, but the examination report is not adequate for rating purposes. The examiner did not identify the specific nerves involved in the Veteran's neurological disability and did not address the severity of each service-connected condition. The Board therefore finds that a new examination is necessary to provide a clearer picture of the Veteran's neurological impairment of the lower extremities, to include identifying the severity of each disability and separating the symptoms associated with each service-connected nerve, if possible.

Turning to the claim for TDIU, entitlement to TDIU was granted in the September 2021 rating decision on appeal effective from March 6, 2015the date the Veteran first met the schedular criteria for an award of TDIU under 38 C.F.R. § 4.16(a). The Veteran specifically argues that TDIU is warranted during the period prior to March 6, 2015 on an extraschedular basis under 38 C.F.R. § 4.16(b). In support of his claim, he submitted a September 2020 private vocational evaluation report concluding that he is unemployable due to service-connected disabilities from at least February 2007.  Given this evidence, the Board finds that there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities.  Ray v. Wilkie, 31 Vet. App. 58, 66 (2019).

The Board itself may not assign an extraschedular rating in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (recognizing that "the [Board] is not authorized to assign an extraschedular rating in the first instance under 38 C.F.R. § 3.321(b)" or § 4.16(b)); accord Smallwood v. Brown, 10 Vet. App. 93, 98 (1997); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). As the Board cannot make a determination regarding extraschedular consideration in the first instance, the claim must be remanded for referral to the Director of Compensation and Pension (Director).

The Veteran's representative contends in an October 2020 letter that referral to the Director is not required in this case, as Bowling and Floyd were overruled by subsequent decisions of the Court. In support ot this contention, the representative points to the Court's decision in Wages v. McDonald 27 Vet. App. 233 (2015) (holding that the Director's opinion was not evidence, but was rather a decision adopted by the AOJ and reviewed by the Board on a de novo basis), as well as the decision in Floyd. The representative also notes that at least two prior Board decisions in 2015 granted TDIU on an extraschedular basis without referral to the Director, finding that the prohibition in Bowling against such action was implicitly overruled. 

The Board disagrees with this argument. First, the Board notes that all Board decisions are non-precedential, and the decisions mentioned by the representative are not binding on the outcome of the current case. Second, the Board disagrees with the representative's characterization of Wages. While there is some evidence that members of the Court may agree that Bowling has been overruled, the actual decision by the Court in Wages made no such finding; instead, it was relegated to a concurring opinion. See Wages v. McDonald, 27 Vet. App. 233, 239-240 (2015) (Kasold, C.J., concurring) ("The Bowling holding was rendered with little analysis of 38 C.F.R. § 4.16(b) or its interplay with the statutory scheme for adjudicating claims, which requires decisions of an agency of original jurisdiction to be appealed to the Board and final decisions to be rendered by the Board, see 38 U.S.C. §§ 7104 and 7105. Frankly, Bowling appears to be wrongly decided"). If the Court had held that Bowling was overruled, there would be no need for such discussion in a concurring opinion. And finally, it has remained the longstanding policy of both VA as a whole and the Board specifically that claims for extraschedular consideration must be referred to the Director in the first instance. As such, the Board finds that referral is appropriate in this case.

The matters are REMANDED for the following action:

1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's skin condition of the scalp and forearms (diagnosed as seborrheic dermatitis) is at least as likely as not related to active duty service, to include the Veteran's exposure to herbicide agents in Thailand, exposure to various chemicals as a jet engine technician, and/or treatment for dermatitis.

The Veteran is legally presumed to have been exposed to herbicide agents during active service in Thailand. He was also treated for dermatitis of the left arm and leg in May 1975. The February 1983 examination for separation shows that the Veteran's skin was normal, and he denied any history of skin disease on the accompanying report of medical history. Post-service records document complaints of skin problems affecting the forearms and scalp in January 2002; at that time, the Veteran reported a five-to-10-year history of sores on his scalp. In July 2005, he requested a referral to a dermatologist for treatment of a recurring rash and sores of the scalp diagnosed as psoriasis. In April 2006, he was diagnosed with seborrheic dermatitis and in February 2007 was noted to have chronic sores on his scalp and multiple sores on his arms. The Veteran has continued to receive treatment for seborrheic dermatitis with private and VA providers. A private examiner in June 2013 characterized the Veteran's dermatosis as "chloracne" and provided a medical opinion linking the condition to herbicide exposure. In contrast, a September 2017 VA examiner concluded that the Veteran did not have chloracne and the only present skin condition at the time of examination was cellulitis and staph infections, though multiple generalized small excoriations were noted on the upper extremities. 

The Board finds that the June 2013 private opinion and September 2017 VA opinion are of reduced probative value as neither is based on a full and accurate review of the facts in this case. A new medical opinion is therefore required to address the Veteran's contentions regarding exposure to herbicide agents, other chemicals associated with his service as a jet engine technician, and in-service treatment for dermatitis.

2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected neurological impairment of the lower extremities. 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. This includes identifying the specific nerves affected by the service-connected lumbar spine disability and diabetes, as well as providing the severity of the impairment and, to the extent possible, separating the symptoms and impairment associated with each service-connected nerve.

The Veteran is currently service connected for the following neurological impairments and nerves:

(a) Radiculopathy of the right lower extremity associated with a lumbar spine disability. The affected nerve is not specified in the disability description, but the diagnostic code accompanying the disability refers to the sciatic nerve.

(b) Radiculopathy of the right femoral artery associated with diabetes mellitus.

(c) Neurological impairment of the left external popliteal and anterior tibial nerve associated with a lumbar spine disability. 

(d) Neurological impairment of the left anterior crural (femoral nerve) associated with a lumbar spine disability.

3. Refer the Veteran's claim for TDIU prior to March 6, 2015 to the Director of Compensation and Pension Service pursuant to the provisions of 38 C.F.R. § 4.16(b) for consideration of whether TDIU is warranted on an extraschedular basis. 

 

 

K. Conner

Veterans Law Judge

Board of Veterans' Appeals

M. Riley, Attorney for the Board	Department of Veterans Affairs

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.