Citation Nr: 21009784 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 18-20 516 DATE: February 23, 2021 ORDER The application to reopen the previously denied claim of entitlement to service connection for dermatophytosis of the head and face with pseudofolliculitis is denied. Entitlement to service connection for chronic arthritis is denied. Entitlement to service connection for left lower extremity radiculopathy is denied. Entitlement to service connection for right lower extremity radiculopathy is denied. Entitlement to service connection for left upper extremity radiculopathy is denied. Entitlement to service connection for right upper extremity radiculopathy is denied. Entitlement to a rating in excess of 50 percent for sleep apnea is denied. Entitlement to a rating in excess of 40 percent for a lumbar spine disability is denied. Entitlement to an initial rating in excess of 30 percent for multiple sclerosis with hyperactive bladder is denied. Entitlement to an initial rating in excess of 10 percent for bowel dysfunction is denied. Entitlement to a rating in excess of 10 percent for dermatophytosis of the feet and tinea pedis is denied. Entitlement to a compensable initial rating for erectile dysfunction is denied. Entitlement to an effective date prior to February 25, 2013 for the grant of a 40 percent rating for lumbar spine disability is denied. Entitlement to an effective date prior to March 29, 2017 for the grant of service connection for multiple sclerosis with hyperactive bladder is denied. Entitlement to an effective date prior to March 29, 2017 for the grant of service connection for bowel dysfunction is denied. Entitlement to an effective date prior to March 29, 2017 for the grant of service connection for bilateral maculopathy is denied. Entitlement to an effective date prior to March 29, 2017 for the grant of service connection for erectile dysfunction is denied. Entitlement to an effective date prior to March 29, 2017 for special monthly compensation for loss of use of a creative organ is denied. Entitlement to an effective date prior to June 26, 2017 for the grant of service connection for left ear hearing loss is denied. REMANDED Entitlement to service connection for right ear hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to a compensable initial rating for left ear hearing loss is remanded. Entitlement to an initial rating in excess of 70 percent for major depressive disorder is remanded. Entitlement to a compensable initial rating for bilateral maculopathy is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Entitlement to an effective date prior to March 29, 2017 for the grant of basic eligibility under 38 U.S.C. Chapter 35 educational benefits is remanded. FINDINGS OF FACT 1. Since the final July 2011 rating decision that denied service connection for dermatophytosis of the head and face with pseudofolliculitis, no new evidence pertinent to the claim has been received. 2. The Veteran does not have a chronic arthritis disorder that is related to service. 3. The Veteran has not been shown to have a radiculopathy disability of either upper extremity, or either lower extremity, at any time since discharge from service. 4. The Veteran’s sleep apnea does not manifest in chronic respiratory failure with carbon dioxide retention or cor pulmonale and does not require a tracheostomy. 5. The Veteran does not have ankylosis of the thoracolumbar spine and his thoracolumbar spine disability has not resulted in incapacitating episodes having a total duration of at least 6 weeks during any 12-month period. 6. The Veteran’s multiple sclerosis with hyperactive bladder results in occasional urinary incontinence not requiring the use of pads. 7. The Veteran’s bowel dysfunction does not result in occasional involuntary bowel movements necessitating wearing of pad. 8. The Veteran’s dermatophytosis of the feet and tinea pedis is manifested by less than 20 percent of the total body area and areas affected, and the disability has not required the use of systemic therapy. 9. The Veteran’s erectile dysfunction is manifested by loss of erectile power without deformity of the penis. 10. Following an unappealed August 2009 rating decision which denied an increased rating for a lumbar spine disability, the Veteran did not submit a claim for an increased rating until February 25, 2013. It was not ascertainable that entitlement to an increased rating arose in the year prior to February 25, 2013. 11. A claim for service connection for multiple sclerosis was first received by VA on March 29, 2017. 12. The Veteran did not indicate an intent to claim service connection for bowel dysfunction, for bilateral maculopathy, or for erectile dysfunction prior to March 29, 2017. 13. A claim for service connection for erectile dysfunction, or a claim for special monthly compensation based on loss of use of a creative organ, was not received prior to March 29, 2017. 14. A claim for service connection for left ear hearing loss was first received by VA on June 26, 2017. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim of entitlement to service connection for dermatophytosis of the head and face with pseudofolliculitis. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for service connection for a chronic arthritis disorder are not met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 3. The criteria for service connection for left lower extremity radiculopathy are not met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 4. The criteria for service connection for right lower extremity radiculopathy are not met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 5. The criteria for service connection for left upper extremity radiculopathy are not met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 6. The criteria for service connection for right upper extremity radiculopathy are not met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 7. The criteria for an initial rating in excess of 50 percent for sleep apnea are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.97, Diagnostic Code 6847. 8. The criteria for a rating in excess of 40 percent for lumbar spine disability are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5242. 9. The criteria for an initial rating in excess of 30 percent for multiple sclerosis with hyperactive bladder are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.120, 4.124a, Diagnostic Codes 7517, 8018. 10. The criteria for an initial rating in excess of 10 percent for bowel dysfunction are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7332. 11. The criteria for a rating in excess of 10 percent for dermatophytosis of the feet and tinea pedis are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7806 (in effect both prior to and after August 13, 2018). 12. The criteria for a compensable rating for erectile dysfunction are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.115b, Diagnostic Code 7522. 13. The criteria for an effective date prior to February 25, 2013, for the grant of a 40 percent rating for lumbar spine disability are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 14. The criteria for an effective date prior to March 29, 2017, for the grant of service connection for multiple sclerosis, are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 15. The criteria for an effective date prior to March 29, 2017, for the grant of service connection for bowel dysfunction, are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 16. The criteria for an effective date prior to March 29, 2017, for the grant of service connection for bilateral maculopathy, are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 17. The criteria for an effective date prior to March 29, 2017, for the grant of service connection for erectile dysfunction, are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 18. The criteria for an effective date prior to March 29, 2017, for the grant of special monthly compensation for the loss of use of a creative organ are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 19. The criteria for an effective date prior to June 26, 2017, for the grant of service connection for left ear hearing loss are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 2006 to November 2007. He had prior active duty for training from June 2001 to December 2001 and Reserve service through 2017. Additional VA treatment records were obtained subsequent to an October 2019 statement of the case (SOC). In January 2021, the Veteran’s attorney wrote to the Board of Veterans’ Appeals (Board) stating that the Veteran waived agency of original jurisdiction (AOJ) review of these records. Accordingly, a remand of the Veteran’s claims for the purpose of AOJ review and issuance of a supplemental statement of the case is not necessary. 1. Whether new and material evidence has been submitted to reopen the claim for service connection for dermatophytosis of the head and face with pseudofolliculitis. The Veteran seeks service connection for dermatophytosis of the head and face with pseudofolliculitis. The VA regional office (RO) most recently denied this claim in a July 2011 rating decision. The Veteran did not appeal the decision. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Therefore, the prior denial of service connection for dermatophytosis of the head and face with pseudofolliculitis is now final, and the Veteran’s claim for service connection may only be reopened if new and material evidence is received. In January 2019 the Board remanded this claim to obtain the Veteran’s VA treatment records from the San Juan and Miami VA medical centers, dated from February 2012 to present. The development has been accomplished and the Veteran’s claim is now ready for Board review. “New” evidence means existing evidence not previously submitted to agency decision makers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). When evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should consider whether such evidence, in its entirety, could at least trigger the duty to assist by providing a medical opinion. See Shade, 24 Vet. App. at 117. Moreover, when determining whether a claim should be reopened, the credibility of any newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record prior to the final July 2011 rating decision included the Veteran’s service treatment records (STR) and the Veteran’s VA treatment records. An October 2001 service treatment record shows the Veteran complained of irritation with shaving, a face and neck rash was noted, and pseudofolliculitis barbae (PFB) was diagnosed. Several subsequent service treatment records show the Veteran was placed on multiple shaving profiles in December 2005, June 2006 (p.163-165 of 459), November 2006 (p.30 of 70), February 2007 (p.249 of 459), and January 2010. An October 2007 post-deployment questionnaire (Iraq) shows the Veteran checked the box indicating he experienced skin disease or rashes during his deployment. Another post-deployment assessment form shows the Veteran wrote that he developed a “body rash” during his deployment in Iraq. The Board notes as an aside that service treatment records dated in 2006 show he was treated for athletes’ foot or foot fungus, for which he is presently service connected (as for dermatophytosis and tinea pedis). A June 2009 VA examiner found no current head or face rash present. The examiner opined that had such been present it would not have been related to the pseudofolliculitis of the face and neck that the Veteran experienced during military service. On VA examination in June 2011, the VA examiner diagnosed dermatophytosis of the head and face rash with pseudofolliculitis. The examiner opined that the Veteran’s skin disorders were unrelated to his environmental exposures in the Persian Gulf War. The evidence obtained since the final July 2011 rating decision includes various VA medical examinations and extensive VA treatment records. The VA treatment records have noted pseudofolliculitis and folliculitis decalvans. However, none of the new evidence indicates that the Veteran had any rash of the head or face that was related to service. The new evidence is duplicative of the evidence of record at the time of the July 2011 final rating decision. The Veteran and his attorney have provided no substantive argument in support of the Veteran’s claim that new and material evidence has been submitted. No new evidence relevant to whether a post service rash of the head or face is related to service has been received since the July 2011 final rating decision. Accordingly, new and material evidence has not been received and the Veteran’s request to reopen the claim for service connection for dermatophytosis of the head and face with pseudofolliculitis is denied. 2. Entitlement to service connection for chronic arthritis. The Veteran submitted a claim for service connection for chronic arthritis in February 2013. The Board notes that the Veteran has been granted service connection for arthritis of the lumbar spine. Consequently, the claim for service connection for a chronic arthritis disorder is considered to include the joints other than the lumbar spine. As explained below, the Board finds that service connection for a chronic arthritis disorder, other than the lumbar spine, is not warranted. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Service incurrence or aggravation of arthritis may be presumed to have been incurred or aggravated if the disability is manifested to a compensable degree within one year of a veteran’s discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In this case, there is no presumed service connection because arthritis was not medically diagnosed within one year of discharge. The Veteran and his attorney have not specified any particular joints affected by arthritis (other than the lumbar spine) and have not provided any theory as to how the alleged chronic arthritis disability is related to service. The STRs are silent to arthritis. The post service medical records show diagnosis and treatment of the Veteran’s service-connected arthritis of the lumbar spine, but do not document arthritis of any of the other joints. Although the Veteran may believe that he currently has a chronic arthritis disorder, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence which shows that the Veteran has not been found to have a chronic arthritis disorder (other than of the lumbar spine) during the appeal period, or at any other time. As such, service connection for a chronic arthritis disorder is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 3. Entitlement to service connection for left lower extremity radiculopathy. 4. Entitlement to service connection for right lower extremity radiculopathy. 5. Entitlement to service connection for left upper extremity radiculopathy. 6. Entitlement to service connection for right upper extremity radiculopathy. The Veteran’s claim for service connection for radiculopathy of the upper and lower extremities was received in June 2017. The Veteran and his attorney have not referred to any medical records that diagnose radiculopathy of any of the extremities. Furthermore, they have not provided any contentions as to why they think that the Veteran has any current radiculopathy disability of any of the extremities. The STRs are silent for radiculopathy of any extremity. The post service medical records also do not show any complaints or treatment for radiculopathy of any of the extremities. Furthermore, VA examination reports of the spine, dated in April 2013, January 2016, July 2017, and October 2019 all specifically stated that the Veteran does not have radiculopathy of any type. The record contains no medical evidence indicating that the Veteran has ever complained of, been treated for, or been diagnosed with, radiculopathy of any extremity. Without any evidence of a radiculopathy disability of any extremity, at any time during the appeal period, or ever, service connection for radiculopathy of either upper extremity or either lower extremity is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 7. Entitlement to a rating in excess of 50 percent for sleep apnea. An August 2009 rating decision granted the Veteran service connection and a 30 percent rating for sleep apnea. A March 2011 rating decision granted the Veteran his current 50 percent rating for sleep apnea. The Veteran submitted his claim for an increased rating in February 2013. Diagnostic Code 6847 provides a 50 percent rating for sleep apnea requiring use of a breathing assistance device such as a continuous airway pressure (CPAP) machine. A 100 rating is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale or for sleep apnea requiring a tracheostomy. 38 C.F.R. § 4.97, Diagnostic Code 6847. Throughout the period on appeal, there is no evidence of chronic respiratory failure with carbon dioxide retention or cor pulmonale or for sleep apnea requiring a tracheostomy, as is required for the next higher rating of 100 percent for sleep apnea under Diagnostic Code 6847. The VA treatment records during the appeal period, an April 2013 VA sleep apnea examination report, and a February 2016 VA sleep apnea examination report do not show such symptoms. Accordingly, a rating in excess of 50 percent sleep apnea is not warranted at any time during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 8. Entitlement to a rating in excess of 40 percent for a lumbar spine disability. The March 2014 rating decision on appeal granted the Veteran an increased rating of 40 percent for his lumbar spine disability, effective from February 25, 2013. The Veteran seeks a rating in excess of 40 percent for his low back disability, described as disc bulges from L3 to L5-S1, ligamentum flavum hypertrophy at L3-L4 and L4-L5, degenerative changes from L1 to L5-S1, and lumbar degenerative disc disease. The Board finds that a rating in excess of 40 percent for the Veteran’s low back disability is not warranted at any time during the appeal period. In this regard his low back disability has not resulted in ankylosis of the thoracolumbar spine or in intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least 6 weeks in a 12-month period. The Board recognizes that the criteria for Rating Musculoskeletal System was amended effective February 7, 2021. However, with regard for the criteria for rating the thoracolumbar spine, the criteria for ratings in excess of 40 percent were not changed. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243). The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that an evaluation of 40 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. An evaluation of 60 percent requires intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Intervertebral Disc Syndrome, Note (1). On VA examination in April 2013 the Veteran had 30 degrees of forward flexion before repetitive use testing and 25 degrees of forward flexion after repetitive use testing. The Veteran did not have IVDS of the thoracolumbar spine. The Veteran was measured to have 45 degrees of flexion on VA examination in July 2017. There was no reduction of forward flexion after repetitive testing. The examiner noted that the Veteran did not have IVDS of the thoracolumbar spine. VA examination of the spine in October 2019 revealed the Veteran to have 40 degrees of flexion of the lumbar spine with no reduction after repetitive testing. The Board has considered functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the Veteran’s treatment records and the VA examination reports described above do not indicate that the Veteran has loss of forward flexion that is the equivalent of ankylosis of the thoracolumbar spine. The Board finds that a rating in excess of 40 percent for the Veteran’s low back disability is not warranted at any time during the appeal period. See Hart, 21 Vet. App. 505 (2007). In this regard his low back disability has not resulted in ankylosis of the thoracolumbar spine or in IVDS with incapacitating episodes having a total duration of at least 6 weeks in a 12-month period. Accordingly, the Veteran’s claim for a rating in excess of 40 percent for his low back disability is denied. 9. Entitlement to an initial rating in excess of 30 percent for multiple sclerosis with hyperactive bladder. The March 2018 rating decision on appeal granted the Veteran service connection for multiple sclerosis with hyperactive bladder, effective from March 29, 2017. The Veteran has appealed the 30 percent initial rating assigned. An August 2016 VA neurology record notes that the Veteran complained mainly of urinary and bowel urgency/incontinence. VA multiple sclerosis examination in July 2017 revealed normal gait and muscle strength. The Veteran had no muscle atrophy and he had normal sensation. He had no mental health manifestations due to multiple sclerosis. The examiner noted that the Veteran had sleep disturbances, blurring of vision and erectile dysfunction attributable to multiple sclerosis. The Veteran was noted to have voiding dysfunction causing urine leakage. It was noted that the Veteran did not use absorbent materials for treatment of his urine leakage. The Veteran reported that he used an appliance, a condom catheter. An August 2017 VA medical record notes that the Veteran reported bilateral hand intention tremor for five or six years and that the symptoms were subtle and on occasion. The Board notes that the Veteran has separate ratings in effect for vision disability and bowel leakage, both residuals of his multiple sclerosis. The ratings assigned for those disabilities are discussed elsewhere in this decision. The Veteran’s multiple sclerosis with hyperactive bladder has been rated at 30 percent by the RO under Diagnostic Code 8018-7517. 38 C.F.R. § 4.124a. Under Diagnostic Code 8018 for multiple sclerosis, the minimum rating for the disability is 30 percent. 38 C.F.R. § 4.124a. This is also the maximum rating available under Diagnostic Code 8018. A parenthetical note preceding the rating criteria shows that multiple sclerosis and its residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. Diagnostic Code 7517 pertains to injuries of the bladder and provides that such disabilities should be evaluated based on voiding dysfunction. 38 C.F.R. § 4.115b. Voiding dysfunction includes urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. For urine leakage, including continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, a 40 percent rating is warranted when leakage requires the wearing of absorbent materials which must be changed 2 to 4 times per day. A maximum 60 percent rating is warranted for the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. 38 C.F.R. § 4.115a. For urinary frequency, a maximum 40 percent rating is warranted for a daytime voiding interval less than one hour or awakening to void five or more times per night. 38 C.F.R. § 4.115a. For obstructed voiding, a maximum 30 percent rating is warranted for urinary retention requiring intermittent or continuous catheterization. 38 C.F.R. § 4.115a. The Board finds that the Veteran has not met any of the criteria for a rating in excess of 30 percent based on voiding dysfunction. A rating in excess of 30 percent is not available based on obstructed voiding as 30 percent is the maximum rating. The July 2017 VA examination and the VA treatment records do not indicate that the Veteran had daytime voiding interval of less than one hour or wakening to void five or more times per night and he is therefore not entitled to a higher rating based on urinary frequency. The VA treatment records do not indicate that the Veteran uses absorbent materials due to urinary leakage and the July 2017 VA examination report specifically notes that the Veteran does not use absorbent material for control of urinary leakage. Consequently, a rating in excess of 30 percent based on wearing of absorbent materials for treatment of urinary leakage is not warranted. The Board recognizes that the Veteran reported to the July 2017 VA examiner that he used an appliance for treatment of his urinary leakage. As noted above, use of an appliance warrants a 60 percent rating under the criteria for urinary leakage. However, the Board finds the other evidence of record indicates that an appliance was not recommended for the treatment of the Veteran’s urinary leakage. The VA treatment records show that during the appeal period the Veteran was followed by VA for urinary leakage. No mention was ever made of an appliance. Instead these records show that since May 2017 the Veteran has been treated with medication with good response. A May 2018 VA treatment record notes that the Veteran’s neurogenic bladder symptoms were controlled with medication. An October 2019 VA treatment record notes that the Veteran’s urinary symptoms remained under control. As the most probative evidence of record clearly shows that the Veteran’s urinary leakage is controlled without the use of absorbent material or an appliance, a rating in excess of 30 percent is not warranted based on urinary leakage. The Veteran’s attorney asserted on an August 2019 VA Form 9 that the Veteran’s multiple sclerosis residuals include a cognitive disorder and motor and sensory deficit, in particular bilateral intention tremors in the hands. He maintains that the Veteran is entitled to separate compensable ratings for these disabilities. The attorney pointed out that a July 2017 mental disorders examination reflected recent memory difficulties and he requested that the Veteran be assigned a separate rating for a cognitive disorder under Diagnostic Code 8045. The Board concludes that a separate compensable evaluation for a cognitive disorder is not warranted. The Board notes that the Veteran currently has service connection in effect for a major depressive disorder with anxiety under Diagnostic Code 9434. Under the General Rating Formula for Mental Disorders, Diagnostic Code 9434 evaluates mental disorders based on the impact to occupation and social functioning and contemplates impairments such as: memory loss, decreased work efficiency, chronic sleep impairment, and inability to establish and maintain effective relationships. Currently all of the Veteran’s mental disability, including memory difficulties, is reflected in the 70 percent rating assigned under Diagnostic Code 9434. The attorney is in effect requesting that the Veteran be compensated for the same symptom, memory loss, under two different diagnostic codes. As such, a separate rating under Diagnostic Code 8045 would compensate the Veteran twice for the same symptom, memory impairment, violating the anti-pyramiding provisions of 38 C.F.R. § 4.14. Accordingly, a separate compensable rating under Diagnostic Code 8045 is not warranted. The Board additionally concludes that a separate compensable evaluation for bilateral intention tremors in the hands, or for any other motor/sensory deficit, secondary to multiple sclerosis is not warranted. The Veteran’s attorney referred to an August 2017 VA medical addendum that noted a history of bilateral hand intention tremor of which the symptoms were subtle and on occasion. The Board notes that the VA treatment records indicate that the Veteran’s tremor of the hands is due to his psychiatric medication rather than due to multiple sclerosis. A December 2016 VA treatment record states that the Veteran’s intention tremor was most likely secondary to Depakote use, which the record indicates is prescribed for treatment of the Veteran’s psychiatric disorder. Additionally, VA treatment records dating from April 2017 to March 2020 note that the risks of the Veteran’s psychiatric medication included tremor. As the hand tremors are not related to multiple sclerosis, the Veteran is not entitled to a separate compensable rating for bilateral hand intention tremor as secondary to his multiple sclerosis. The Board further finds that the Veteran is not entitled to a separate compensable rating for any other motor or sensory deficit due to his multiple sclerosis. The VA treatment records dated during the appeal period note that the Veteran denied difficulty walking and that he denied falling. This includes an August 2019 VA treatment record in which the Veteran denied a history of falls in the last 12 months. Furthermore, the July 2017 VA examination report notes that the Veteran had a normal gait and that he had normal muscle strength and sensation throughout. He had no muscle atrophy attributable to multiple sclerosis. Consequently, the Veteran is not entitled to a separate compensable rating for any motor or sensory deficit, including bilateral intention tremor of the hands, secondary to his multiple sclerosis. As shown above, the Veteran is not entitled to an initial rating in excess of 30 percent for his multiple sclerosis with hyperactive bladder at any time since the grant of service connection. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 10. Entitlement to an initial rating in excess of 10 percent for bowel dysfunction. The March 2018 rating decision on appeal granted the Veteran service connection and a 10 percent rating for bowel dysfunction, effective from March 29, 2017. The Veteran appealed the 10 percent rating assigned. The Veteran’s service-connected disability is rated under Diagnostic Code 7332, pertaining to impairment of sphincter control of the rectum and anus. Diagnostic Code 7332 provides for a 10 percent evaluation for constant slight or occasional moderate leakage. Occasional involuntary bowel movements necessitating the wearing of a pad warrants a 30 percent evaluation. Extensive leakage and fairly frequent involuntary bowel movements warrant a 60 percent evaluation. A complete loss of sphincter control warrants a 100 percent evaluation. On VA examination in July 2017 the Veteran reported occasional moderate bowel leakage. None of the medical evidence indicates that the Veteran ever has had involuntary bowel movements necessitating the wearing of a pad. A higher evaluation is not warranted. As noted above, neither the Veteran, nor the medical evidence has described involuntary bowel movements requiring the use of pads. The Veteran has also not described extensive leakage or fairly frequent involuntary bowel movements. There is also no indication of total loss of sphincter control. Accordingly, the Veteran is not entitled to a rating in excess of 10 percent at any time since the grant of service connection. See Fenderson, 12 Vet. App. 119, 126 (1999). 11. Entitlement to a rating in excess of 10 percent for dermatophytosis of the feet and tinea pedis. The Veteran submitted his claim for an increased rating for his skin condition of the feet in February 2013. The Veteran has had a 10 percent rating for dermatophytosis and tinea pedis of the feet pursuant to Diagnostic Code 7806 since November 2007. VA recently amended DC 7806, but claims pending on August 13, 2018 may be considered under either the pre-amended or amended criteria, whichever is more favorable. 83 Fed. Reg. 32592 (August 13, 2018). The current version of Diagnostic Code 7806 utilizes the General Rating Formula for The Skin and enables a 30 percent rating upon a showing of characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is warranted upon a showing of characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant, or near constant, systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. Systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118, Diagnostic Code7806 (in effect since August 13, 2018). Under pre-amended DC 7806, a 10 percent rating requires that at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas be affected, or intermitted systemic therapy such as corticosteroids or other immunosuppressive drugs be required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating requires that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas be affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs be required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating requires that more than 40 percent of the entire body or more than 40 percent of exposed areas be affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs be required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806 (in effect prior to August 13, 2018). On VA examination in April 2013 the Veteran had dry and cracked skin on the plantar area and between the toes of his feet. He reported that he used a medicated ointment for treatment. The examiner noted that the Veteran used topical corticosteroids on a constant, or near-constant, basis for the skin disability on his feet. The examiner indicated that the skin disability of the feet did not cover any exposed area of the body. He noted that it covered less than 5 percent of the total body area. When examined by VA in January 2016, the examiner noted that the Veteran’s tinea pedis of the feet covered less than 5 percent of exposed body area and less than 5 percent for the total body area. She reported that during the past 12 months the Veteran had not used any medication to treat the skin on his feet. VA treatment records, dated from August 2016 to April 2020, note that the Veteran was at times told to use nystatin powder before putting on his socks and to use topical corticosteroids for treatment of the skin condition on his feet. The record clearly shows that the Veteran does not meet the criteria for a rating in excess of 10 percent for his bilateral foot skin disability under either the pre-amended or amended criteria. The skin disability of his feet covers less than five percent of the exposed areas of his body and less than five percent of his total body area. Furthermore, the record does not indicate that the Veteran has ever received systemic treatment for the skin disability of his feet. Accordingly, the Veteran is not entitled to a rating in excess of 10 percent at any time during the appeal period. See Hart. 12. Entitlement to a compensable initial rating for erectile dysfunction. The March 2018 rating decision on appeal granted the Veteran service connection and a noncompensable rating for erectile dysfunction, effective from March 29, 2017. The Veteran appealed the noncompensable rating assigned. The Veteran’s service-connected erectile dysfunction has been assigned a noncompensable rating under 38 C.F.R. § 4.114b by analogy under Diagnostic Code 7522, for penis, deformity, with loss of erectile power. 38 C.F.R. §§ 4.20, 4.27. Deformity of the penis with loss of erectile power is rated as 20 percent disabling. 38 C.F.R. § 4.115b, Diagnostic Code 7522. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Board notes that Diagnostic Code 7522 provides that the disability is to be reviewed for entitlement to special monthly compensation (SMC) for loss of use of a creative organ under 38 C.F.R. § 3.350. The Veteran, however, already receives SMC for his erectile dysfunction on account of the loss of use of a creative organ. 38 U.S.C. § 1114(k). Thus, for the Veteran to receive a compensable rating, he must show both physical deformity of the penis and loss of erectile power. Here, there is simply no contention or indication in the medical evidence that the Veteran has ever had a physical deformity of his penis. On VA examination in July 2017 the examiner noted that the Veteran had no penile deformity. Absent penis deformity, his loss of erectile power does not warrant a compensable schedular rating. 38 C.F.R. § 4.115(b), Diagnostic Code 7522. Other rating criteria under 38 C.F.R. § 4.115b are not applicable, as the Veteran does not contend and the evidence does not indicate he has had removal of half or more of the penis (Diagnostic Code 7520); removal of the glans of the penis (Diagnostic Code 7521); testicular atrophy (Diagnostic Code 7523); or testicular removal (Diagnostic Code 7524). Accordingly, entitlement to a compensable initial rating for erectile dysfunction is denied. 13. Entitlement to an effective dated prior to February 25, 2013 for a 40 percent rating for lumbar spine disability. The Veteran’s current claim for an increased rating for his service-connected lumbar spine disability was received by VA on February 25, 2013. The March 2014 rating decision on appeal granted the Veteran an increased rating of 40 percent for his lumbar spine disability, effective from February 25, 2013. The Veteran has appealed the February 25, 2013 effective date of the 40 percent rating. He and his attorney have not provided any argument as to why an earlier date is warranted. In general, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An exception to that rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In such an instance, the law provides that the effective date of the award “shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” 38 U.S.C. § 5110(b)(2). A March 2008 rating decision granted the Veteran service connection and a 20 percent rating for his lumbar spine disability. An August 2009 rating decision denied a rating in excess of 20 percent for the Veteran’s lumbar spine disability. The Veteran did not appeal the August 2009 decision. Subsequent to that decision no correspondence or other communication was received from the Veteran which could be considered a claim for an increased rating until February 25, 2013. On February 25, 2013, VA received the Veteran’s claim for an increased rating. Accordingly, February 25, 2013 is the date of receipt of the Veteran’s claim for an increased rating. The Board has reviewed the medical evidence dated in the year prior to February 25, 2013. It is not factually ascertainable the that Veteran met the criteria for a higher rating in the year prior to February 25, 2013. Consequently, there is no basis for assignment of a 40 percent rating effective any earlier than February 25, 2013. 38 C.F.R. § 3.400(o). 14. Entitlement to an effective date prior to March 29, 2017 for the grant of service connection for multiple sclerosis with hyperactive bladder. 15. Entitlement to an effective date prior to March 29, 2017 for the grant of service connection for bowel dysfunction. 16. Entitlement to an effective date prior to March 29, 2017 for the grant of service connection for bilateral maculopathy. 17. Entitlement to an effective date prior to March 29, 2017 for the grant of service connection for erectile dysfunction. The March 2018 rating decision on appeal granted the Veteran service connection for multiple sclerosis, for bowel dysfunction, for bilateral maculopathy, and for erectile dysfunction, effective from March 29, 2017. The Veteran appealed the effective date assigned but he and his attorney have not provided any argument as to why they believe earlier effective dates are warranted. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 U.S.C. § 5110(b)(1). The Veteran did not submit a claim for service connection for multiple sclerosis, for bowel dysfunction, for bilateral maculopathy, or for erectile dysfunction within one year of discharge from service. Accordingly, the effective date provision regarding claims received within one year after separation from service does not apply. Otherwise, VA regulations provide that the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. The evidence of record indicates that the Veteran’s initial claim for service connection for multiple sclerosis was received by VA on March 29, 2017. Service connection for the Veteran’s bowel dysfunction, bilateral maculopathy, and erectile dysfunction disabilities was granted based on their being residuals of the Veteran’s multiple sclerosis. The Veteran has made no assertions that he filed a claim for service connection for any of these disabilities prior to March 29, 2017. As this date is later than the date entitlement arose, it is the appropriate effective date. Accordingly, preponderance of the evidence is against the claims, and the claims for earlier effective dates for service connection for multiple sclerosis, for bowel dysfunction, for bilateral maculopathy, and for erectile dysfunction must be denied. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 18. Entitlement to an effective date prior to March 29, 2017 for special monthly compensation for loss of use of a creative organ. The March 2018 rating decision on appeal granted the Veteran special monthly compensation for loss of use of a creative organ effective from March 29, 2017. The Veteran appealed the effective date assigned. He and his attorney have not provided any argument as to why they believe an earlier effective date is warranted. The Board notes that the March 2018 rating decision awarded the effective date of March 27, 2017 because that was the effective date VA awarded service connection for erectile dysfunction. The Veteran’s claim for service connection for multiple sclerosis was received on March 27, 2017, and that is considered to be the date of claim of service connection for the residuals of multiple sclerosis, which includes erectile dysfunction. The Board has reviewed the Veteran’s VA claims folder and can find no evidence of any communication or document that was received prior to March 27, 2017 that can be considered a claim for special monthly compensation for loss of use of a creative organ, that can be considered a claim for service connection for erectile dysfunction, or that can be considered a claim for service connection for multiple sclerosis. As noted above, an effective date is assigned based on the date of the receipt of a claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. As the March 27, 2017 date of claim is later than the date entitlement arose, it is the appropriate effective date. Accordingly, preponderance of the evidence is against the claim, and the claim for an effective date prior to March 27, 2017 for the award of special monthly compensation for loss of use of a creative organ must be denied. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 19. Entitlement to an effective date prior to June 26, 2017 for the grant of service connection for left ear hearing loss. The March 2018 rating decision on appeal granted the Veteran service connection for left ear hearing loss, effective from June 26, 2017. The Veteran appealed the effective date assigned. He and his attorney have not provided any argument as to why they believe an earlier effective date is warranted. The evidence of record reveals that the Veteran’s initial claim for service connection for hearing loss was received by VA on June 26, 2017. The Veteran has made no assertions that he filed a claim for service connection for hearing loss prior to June 26, 2017. As this date is later than the date entitlement arose, it is the appropriate effective date. Accordingly, preponderance of the evidence is against the claim, and the claim for an effective date prior to June 26, 2017 for the grant of service connection for left ear hearing loss must be denied. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS FOR REMAND 1. Entitlement to service connection for right ear hearing loss disability is remanded. The March 2018 rating decision on appeal denied service connection for right ear hearing loss disability based on a July 2017 VA audiology examination that showed that the Veteran had normal hearing in the right ear as defined by VA. Subsequent to the June 2019 SOC, additional VA treatment records were added to the record. Some of these records are dated subsequent to the July 2017 VA audiology examination and indicate that the Veteran had sensorineural hearing loss. It is unclear as to whether these records are only referring to the left ear or to both ears. Accordingly, a new VA audiological examination must be provided to the Veteran to determine whether he currently has right ear hearing loss. 2. Entitlement to service connection for tinnitus is remanded. The March 2018 rating decision on appeal denied service connection for tinnitus. Subsequent to the June 2019 statement of the case additional VA treatment records pertinent to the Veteran’s tinnitus claim were received that had not been reviewed by the AOJ. The Veteran and his attorney did not waive AOJ review of these records. Accordingly, this claim must be remanded to the AOJ for review of the newly received evidence along with preparation of a supplemental statement of the case. 3. Entitlement to a compensable initial rating for left ear hearing loss is remanded. The Veteran has not had a VA audiological examination of the left ear since July 2017. Furthermore, the Veteran’s attorney asserted on an August 2019 VA Form 9 that the Veteran should be given a new VA audiological examination of the left ear. The Board interprets this as an assertion that the July 2017 VA audiology examination does not reflect the current severity of the Veteran’s left ear hearing loss. Accordingly, the Veteran’s claim for an increased rating for his left ear hearing loss disability must be remanded for a VA audiology examination. 4. Entitlement to an initial rating in excess of 70 percent for major depressive disorder is remanded. A February 2018 rating decision granted the Veteran service connection and a 70 percent rating for major depressive disorder with anxiety, effective February 25, 2013. The Veteran appealed the 70 percent rating assigned. The most recent VA examination of the Veteran’s major depressive disorder was performed in July 2017. The VA examiner indicated that the Veteran’s disability only resulted in occupational and social impairment due to mild or transient symptoms. Since then there is evidence that the Veteran’s psychiatric disorder may have increased in severity, as shown by a November 2020 a vocational rehabilitation counselor report. Accordingly, the Veteran must be provided a new VA psychiatric examination to determine the current severity of his major depressive disorder. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 5. Entitlement to a compensable initial rating for bilateral maculopathy is remanded. The March 2018 rating decision on appeal granted service connection and a noncompensable rating for bilateral maculopathy. In assigning the Veteran a noncompensable rating the AOJ stated that the Veteran had normal visual fields. The Board notes that this statement is contrary to an August 2017 VA examination report that indicates that the Veteran’s visual fields were contracted rather than normal. Additionally, the visual fields charts were not included in the VA examination report. The August 2017 VA visual fields information should be obtained if possible and considered by the AOJ. Regardless of whether the August 2017 visual fields information is obtained, the Veteran should be provided a new VA examination of the eyes to determine the current severity of his bilateral maculopathy. 6. Entitlement to a TDIU is remanded. The claim for TDIU is inextricably intertwined with the appeals for increased ratings and service connection that have been remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Therefore, the claim for TDIU must be remanded pending the development of these other claims. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that two or more issues are inextricably intertwined if one claim could have significant impact on the other). 7. Entitlement to an effective date prior to March 29, 2017 for the grant of basic eligibility under 38 U.S.C. Chapter 35 educational benefits is remanded. The Board notes that the claim for an earlier effective date for Chapter 35 DEA benefits is inextricably intertwined with the Veteran’s claim for TDIU. Accordingly, adjudication of this matter will be deferred until further development of the inextricably intertwined issue is completed. See Harris, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain the Goldmann chart from the August 2017 VA eye conditions examination, and any other charts pertaining to the Veteran’s visual fields, that may be available in the VA treatment records, including via VISTA imaging. 2. Provide the Veteran a current VA examination of the eyes that includes visual field testing. 3. Provide the Veteran a VA audiology examination. If the Veteran has right ear hearing loss disability as defined by VA, provide an opinion as to whether it is at least as likely as not the Veteran has right ear hearing loss disability due to service. If the Veteran reports tinnitus, provide an opinion as to whether it is at least as likely as not tinnitus is due to service. 4. Provide the Veteran a VA examination to ascertain the current severity and manifestations of his service-connected major depressive disorder. The examiner should report all signs and symptoms necessary for evaluating the disability under the rating criteria. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Jones, 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.