Citation Nr: 22042002 Decision Date: 07/22/22 Archive Date: 07/22/22 DOCKET NO. 14-33 180 DATE: July 22, 2022 ORDER 1. Entitlement to an effective date of June 24, 1998, but not earlier, for the award of service connection for erectile dysfunction (ED) is granted. 2. Entitlement to an effective date of March 7, 1990, but not earlier, for the award of special monthly compensation (SMC) based on loss of use of a creative organ is granted. 3. Entitlement to an initial disability rating in excess of 50 percent for major depressive disorder prior to February 29, 2016 is denied. 4. Entitlement to an initial compensable disability rating for ED is denied. REMANDED 5. Entitlement to a disability rating in excess of 50 percent for major depressive disorder since February 29, 2016 is remanded. 6. Entitlement to an initial compensable disability rating for epididymitis with bilateral testicular atrophy (epididymitis disability) prior to April 1, 1991 and in excess of 10 percent since April 1, 1991 is remanded. FINDINGS OF FACT 1. Although the Veteran initially filed an informal claim for entitlement to service connection for epididymitis, which encompassed a claim for service connection for ED, on March 7, 1990, entitlement to service connection for ED did not arise until June 24, 1998, as the evidence does not show that the Veteran had ED prior to this date. 2. The Veteran's award of SMC based on the loss of use of a creative organ was predicated on the grant of service connection for epididymitis, which, pursuant to a February 2019 Board decision, has an effective date of March 7, 1990. 3. The evidence persuasively weighs against finding that the Veteran's major depressive disorder was manifested by occupational and social impairment with deficiencies in most areas prior to February 29, 2016. 4. The evidence persuasively weighs against finding that the Veteran's ED has manifested by a deformity of the penis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of June 24, 1998, but not earlier, for the award of service connection for ED have been met. 38 U.S.C. §§ 5101, 5110, 7105; 38 C.F.R. §§ 3.1, 3.102, 3.151, 3.155, 3.156, 3.303, 3.400. 2. The criteria for entitlement to an effective date of March 7, 1990, but not earlier, for the award of SMC based on loss of use of a creative organ have been met. 38 U.S.C. §§ 1114(k), 5101, 5110, 7105; 38 C.F.R. §§ 3.1, 3.102, 3.151, 3.155, 3.156, 3.350(a), 3.400. 3. The criteria for entitlement to an initial disability rating in excess of 50 percent for major depressive disorder prior to February 29, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9434. 4. The criteria for entitlement to an initial compensable disability rating for ED have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.115b, DC 7599-7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from February 1971 to November 1972. The Veteran initially testified before the undersigned Veterans Law Judge (VLJ) sitting at the Regional Office (RO) in Jackson, Mississippi during a February 2018 Board hearing. The undersigned held a second, virtual Board hearing in the Veteran's case in January 2022. Transcripts of the hearings are included in the claims file. During the second hearing, the VLJ agreed to hold the record open for an additional 60 days for the Veteran to submit additional evidence. A thorough review of the record shows that in March 2022, the Veteran's attorney submitted a written statement and private medical opinions dated in October 2018, November 2018, February 2020, and July 2021. The record also shows that the Veteran waived RO consideration of this new evidence. Thus, the Board will consider that evidence in connection with the current claims on appeal. This case was previously before the Board in February 2019, at which time, the Board denied increased ratings for the major depressive disorder and ED disabilities, granted an earlier effective date of March 7, 1990 for the award of service connection for epididymitis, denied earlier effective dates prior to November 6, 2009 for the award of service connection for ED and SMC based on loss of use of a creative organ, and remanded the initial increased rating claim for epididymitis for a new VA examination and addendum opinion. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2020, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Partial Remand (Joint Motion) to vacate and remand the increased rating claims for major depressive disorder and ED and the earlier effective dates for grants of service connection for ED and SMC based on loss of use of a creative organ back to the Board, which was granted by the Court. Specifically, the parties agreed that the Board did not ensure that VA's duty to assist was satisfied after the Veteran's attorney submitted a February 2018 letter requesting a copy of the VA examiner's personnel file with VA, or in the alternative, the examiner's curriculum vitae (CV). See Francway v. Wilkie, 930 F.3d 1377 (2019) (holding that once a challenge to an examiner's competency is raised, the presumption of competency is rebutted, and VA must satisfy its burden of persuasion as to the examiner's qualifications and respond to the challenge by providing information about the qualifications of a medical examiner to the veteran). The Board notes that the Veteran, through his counsel, has waived any such request for information regarding the qualifications of any VA examiner pertinent to the claims on appeal during the January 2022 Board hearing and in a March 2022 written statement. The record contains a January 2022 Privacy Act request submitted by the Veteran's attorney, requesting a copy of the January 2022 Board hearing transcript. The Board considers this request duplicative, as the Veteran's attorney already has access to the Veteran's entire electronic claims file, including the requested record, via the Veterans Benefits Management System (VBMS). Therefore, the attorney's request for access to the January 2022 Board hearing transcript has already been fulfilled and no further action is required. Effective Dates, Generally The Veteran is seeking an effective date earlier than November 6, 2009 for the award of service connection for ED. For example, in the March 2022 statement, the Veteran's attorney contended that the Veteran's informal claim for service connection for epididymitis, which was received by VA on March 7, 1990, reasonably raised a claim for service connection for ED. Furthermore, the attorney asserted that the contemporaneous evidence, which was later associated with the claims file also shows that the Veteran's testicular disorder caused sterility, and thus, entitlement to SMC based on loss of use of a creative organ should also be made effective March 7, 1990. The law regarding effective dates provides that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means 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). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). For claims received on or after March 24, 2015, VA amended its regulations governing how to file a claim. The effect of the amendment was to standardize the process of filing claims, as well as the forms accepted, in order to increase the efficiency, accuracy, and timeliness of claims processing, and to eliminate the concept of informal claims. See 38 C.F.R. § 3.155; 79 Fed. Reg. 57660-01. However, prior to the effective date of the amendment, VA law provided that any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. Even with respect to informal claims, such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (for claims received prior to March 24, 2015). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 1. Effective Date for Award of Service Connection for ED The record shows that the Veteran filed an informal claim for service connection for ED, as well as epididymitis, on March 7, 1990. Specifically, in a written statement, the Veteran asserted that his left testicle had completely broken up and his right testicle was almost gone. He stated that it really hurt if he put the least bit of pressure on what was left of the right testicle. He asked for VA's help if possible. The record also shows that he made similar contentions in an April 1990 written statement, and that he submitted a formal application for service connection for a bilateral testicular disability in an April 1990 Veterans Application for Compensation or Pension (VA Form 21-526). After affording the Veteran the benefit of the doubt, the Board determines that the March 7, 1990 written statement, which was an informal claim for entitlement to service connection for epididymitis, reasonably encompassed a claim for service connection for ED. However, the evidence persuasively weighs against finding that entitlement to service connection for ED arose prior to June 24, 1998, as the evidence does not show that the Veteran had symptoms of ED prior to this later date. For example, although prior to the appeal period, a June 1985 VA evaluation showed that the Veteran reported that he did not have impotence (ED), changes in libido, or loss of male sexual characteristics. Likewise, following the March 1990 claim for service connection for the bilateral testicular symptoms and epididymitis, the Veteran submitted statements regarding his genital and sexual symptoms on several occasions, including in April 1990 and February 1991, but did not provide facts that were indicative of his having ED at those times. Furthermore, although the Veteran was noted to have epididymitis and bilateral testicular atrophy in an April 1991 VA examination, the evaluation did not mention the presence of ED symptoms. In fact, the first instance of such symptoms is noted in a VA physician's attending note, dated June 24, 1998, in which the Veteran reported that he was able to have intercourse but did have intermittent ED and rarely ejaculated. The record next shows that the Veteran complained of ED symptoms in April 2004, at which time he was prescribed a trial of Viagra medication to help achieve erections. Given this evidence, and after affording the Veteran the benefit of the doubt, an effective date of June 24, 1998, but not earlier, is warranted for the award of service connection for ED. Although the Veteran's March 7, 1990 informal claim for entitlement to service connection for epididymitis encompassed a claim for service connection for ED, entitlement to service connection for this disability did not arise until June 24, 1998, as the evidence does not show that the Veteran had symptoms of ED prior to this later date. Accordingly, an effective date of June 24, 1998, but not earlier, for the award of service connection for ED is warranted, and to that extent, the Veteran's claim is granted. See 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.155(a), 3.400. 2. Effective Date for the Award of SMC Based on Loss of Use of a Creative Organ The Veteran contends that entitlement to SMC based on loss of use of a creative organ should be made effective March 7, 1990, as this benefit was granted due to his service-connected epididymitis disability, which has an effective date since March 1990. VA law provides that entitlement to SMC is warranted if a Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). The record shows that after the Board granted an effective date of March 7, 1990 for service connection for epididymitis in a February 2019 decision, the Agency of Original Jurisdiction issued a March 2019 rating decision effectuating the Board's grant of this earlier effective date. This rating decision assigned a noncompensable (zero percent) disability rating, effective March 7, 1990. However, the AOJ issued another rating decision granting an increased rating of 10 percent for this disability since April 1, 1991 in a December 2019 rating decision. The December 2019 rating decision also granted SMC based on loss of use of a creative organ since April 1, 1991. In this case, the record shows that the grant of SMC was based on the grant of service connection for epididymitis, which was assigned an effective date of March 7, 1990. The Veteran contends, and the Board agrees, that the evidence shows that entitlement to an SMC based on loss of use of a creative organ arose at the time of the March 7, 1990 claim. For example, a June 1985 VA evaluation shows that the Veteran was diagnosed with infertility/sterility probably secondary to bilateral orchitis. Accordingly, as the Board has previously found that an effective date of March 7, 1990 for the grant of service connection for epididymitis is warranted, the same effective date for the award of SMC is also warranted in this case. This is the earliest possible effective date for SMC based on anatomical loss or loss of use of a creative organ due to the assigned effective date of service connection for epididymitis. Thus, an effective date of March 7, 1990, but not earlier, for the award of SMC based on loss of use of a creative organ is warranted, and to that extent, the Veteran's claim is granted. See 38 U.S.C. §§ 1114(k), 5110(a); 38 C.F.R. §§ 3.155(a), 3.350(a), 3.400. Increased Rating, Generally The Veteran contends that his service-connected major depressive disorder and ED should be higher than the currently-assigned disability ratings of 50 percent and zero percent, respectively. For example, the Veteran asserted in the August 2014 Substantive Appeal to the Board (VA Form 9) that he was taking medication for his psychiatric disorder to help with his sleep and nightmares. Likewise, the Veteran's attorney contended in the March 2022 statement that the Veteran's psychiatric disability should be rated as 100 percent disabling for the entire period on appeal. Furthermore, the Veteran's attorney asserted in the March 2022 statement that a 20 percent disability rating was warranted for the Veteran's ED as he had a deformed penis. VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or up to one year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." As discussed in more detail below, the Veteran appealed the initially-assigned disability rating for the major depressive disorder and the evidence shows that he asserted that there was a worsening of his symptoms in February 2016; thus, the appeal period for this disability stems from November 6, 2009 to February 29, 2016. Furthermore, as discussed above, the Board has granted an earlier effective date for the award of service connection for ED of June 24, 1998, and thus, the appeal for this disability stems since that time. 3. Increased Rating for Major Depressive Disorder Prior to April 29, 2016 The Veteran's service-connected psychiatric disorder has been evaluated under 38 C.F.R. § 4.130 as 50 percent disabling under the General Rating Formula for Mental Disorders, which assigns ratings based on particular symptoms and the resulting functional impairments. See 38 C.F.R. § 4.130, DC 9434. The General Rating Formula is as follows: A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. The symptoms associated with each rating in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list; rather, they serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the DCs. See id. VA must consider all symptoms of a veteran's disorder that affect his or her occupational and social impairment. See id. at 443. If the evidence demonstrates that a veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate, equivalent rating will be assigned. Id. In this regard, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. Although VA considers the level of social impairment, it does not assign an evaluation based solely on social impairment. Id. VA must consider all of the Veteran's symptoms and resulting functional impairment as shown by the evidence in assigning the appropriate rating, and will not rely solely on the examiner's assessment of the level of disability at the moment of examination. See id. The Veteran's records include evaluations based on the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV), which includes Global Assessment Functioning (GAF) scores, and the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-5), which does not use GAF scores. The Court has held that the use of GAF scores to assign disability ratings in instances where the DSM-5 applies, as is the case here, is inappropriate. See Golden v. Shulkin, 29 Vet. App. 221, 225 (2018). Thus, the Board shall not discuss GAF scores below. At the outset, the Board finds that the evidence persuasively weighs against finding that the Veteran's major depressive disorder was manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, prior to February 29, 2016. The reasons follow. In a November 2009 VA behavioral health outpatient note, the Veteran stated that although he sought mental health treatment in 2005 and 2006 at a VA facility, he stopped treatment because he felt that his olanzapine and trazodone medications were too strong for him. The medical professional noted that the Veteran previously went through an alcohol detox treatment, and that he was imprisoned because he previously violated parole. During his incarceration, the Veteran was on Seroquel medication. He was released from prison in October 2009. The Veteran reported that he was having trouble with irritability, having dreams of events and reported that he felt that his irritability was affecting his reaction to the Addiction Treatment Program (ATP) at that time. The medical professional noted that even though the Veteran was diagnosed with polysubstance dependence, he reported discrete episodes of drug use related to the specific substance involved. He reported that he last used alcohol and cocaine in October 2009, and that he last used heroin in 2004. He stated that he was currently on parole for three years and that he was previously diagnosed with schizophrenia a number of years ago. He denied any symptoms of suicidal ideation but stated that he had intermittent hallucinations and paranoid delusions. A psychiatric evaluation showed that the Veteran was not on any psychiatric medications at that time. A mental status examination showed that he was casually dressed with no evidence of psychomotor agitation or retardation. His speech was normal in rate, rhythm, amount, volume, and latency. He described his mood as bad, and noted that he was in a jail riot. His affect was anxious, stable, congruent, and constricted. The medical professional noted that he was circumstantial, but directable. He denied suicidal or homicidal thoughts, but admitted to occasional paranoid delusions, and auditory hallucinations. His cognition showed that he was alert and orientated to person, place, and time. His judgment was fair. He was diagnosed with depressive disorder not otherwise specified (NOS) rule-out major depressive disorder with psychotic features versus substance-inducted mood disorder. Three days later, the Veteran filed a claim for service connection for posttraumatic stress disorder (PTSD) in November 2009, which VA construed as a claim for service connection for a psychiatric disorder, including major depressive disorder. In a December 2009 statement, the Veteran asserted that he had many restless nights and horrible dreams. He stated that he heard voices and saw things at times. He stated that he was previously diagnosed with paranoid schizophrenia. He indicated that he was on medication for his symptoms, including sertraline, but that these medications were not helping his symptoms. A February 2010 VA mental health group note showed that the Veteran was participating in group therapy for cocaine dependence. A July 2010 VA mental health note showed that the Veteran was getting better sleep with trazadone medication at night. He reported that he still had periods of low mood, but that generally he did better with the sertraline medication. Regarding the Veteran's prior reports of hearing voices, the Veteran stated that he is fairly certain that what he heard were his own thoughts, and "conscience." A mental status examination showed that he was casually dressed, with no evidence of psychomotor agitation or retardation. His speech was normal in rate, volume, amount, rhythm, and latency. He described his mood as OK but stated that he needed more sleep. His affect was euthymic, stable, congruent, and constructed. His thought processes and thought content were linear, and he denied any suicidal or homicidal ideation, intent, means, or plan. He admitted to occasional paranoid delusions, but denied any auditory hallucinations. He was alert and oriented to person, place, and time. His insight and judgement were fair. The medical professional noted that it had been over six months since the Veteran last used illicit drugs and that his depressive symptoms had responded to the sertraline medication. The medical professional noted that the Veteran's diagnosis was being changed to moderate, major depressive disorder as opposed to depressive disorder NOS rule out major depressive disorder versus substance induced mood disorder. The medical professional noted that the there was no evidence of psychotic features. During a November 2010 VA examination, the Veteran reported that he was married for 32 years but was divorced. He had two children, ages 39 and 41. He reported that he was living in a sober living facility affiliated with the ATP at a VA Medical Center (VAMC). He reported that he had previously lived on the street and that he had been to prison approximately eight times, with 16 months being the longest sentence. The examiner noted that the Veteran had an extensive substance abuse history since at least his late adolescence. The examiner also noted that the Veteran had been in continuous substance abuse treatment since 2009. The examiner noted that the Veteran's current nonmilitary stressors were financial distress, unemployment, and coping with serious health problems. A mental status examination showed that the Veteran arrived early to the appointment. He was casually dressed and appropriately groomed. He was alert and oriented to person, place, time, and purpose. He described his mood as "alright" and stated that he had a little headache. His affect was mildly constricted His thought process was linear and goal-directed. Speech quality was normal in rate, volume, and prosody. Expressive and receptive language and communication ability, attention and concentration, and recent and remote memory were within normal limits. There was no evidence of psychomotor acceleration or retardation. Insight and judgment appeared to be within normal limits. The Veteran denied suicidal or homicidal ideation. His depression inventory score fell into the severe range of symptoms of depression. He was diagnosed with moderate major depressive disorder, cocaine and alcohol dependence in a controlled environment, and heroin dependence that was in sustained full remission. A May 2013 VA gastroenterology note showed that the Veteran's depression disability was stable on current medication. A September 2014 VA mental health telephone encounter note showed that the Veteran was complying with his medications without any side effects. He reported that his mood was "so so," and that he was depressed because VA was continuing to deny his claim for service connection for epididymitis. He stated that he slept approximately four to five hours per night. A mental status examination showed that he was casually dressed. His psychomotor activity was neutral, and he did not have any involuntary movements. His mood was euthymic and his affect was congruent with mood. His speech was normal in rate, volume, and rhythm. He died having any suicidal or homicidal ideations, auditory or visual hallucinations, delusions, or paranoia. His thought process was coherent, goal-oriented, and linea. He was alert to place, time, and person. His judgment and insight were fair. He was noted to be taking sertraline, trazodone, and Seroquel as prescribed and was told to follow up in six months. The Veteran underwent another VA examination in April 2015, at which time, he was noted to be receiving current mental health treatment at a VAMC. He was unemployed and he reported that he spent approximately 12 years in prison in the past. He reported that he had poor appetite, sleep problems, persistent rumination, irritability/short-tempered, fatigue, restlessness, chronic pain due to epididymitis, feeling depressed all the time, jitteriness, hypervigilance, and difficulty trusting others. However, he denied having suicidal or homicidal thoughts, and he did not have any auditory or visual hallucinations. The examiner noted that the Veteran had depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or worklike settings. A mental status examination showed that the Veteran understood the reason for the examination and was a reliable historian. His cognitive functioning was within normal limits, with short-term memory impairment (recalled 2/3 items). He was oriented to person, place, time, and situation. His mood was depressed and his affect was congruent to mood. He was alert, cooperative, and tracked conversation well. He had concrete thought processes with thought content focused on responding to questions. He had poor eye contact. His speech was normal in rate and volume. He had restless motoric movements and a steady gait. He was appropriately groomed. He denied suicidal and homicidal ideations, as well as auditory or visual hallucinations. He was independent in his activities of daily living, and there was no indication for further testing. The examiner determined that based on his current psychiatric symptoms, the Veteran's major depressive disorder resulted in occupational and social impairment with reduced reliability and productivity. A February 2016 private treatment record showed that the Veteran denied having any suicidal or homicidal ideation. Given this evidence, the Board finds that the evidence persuasively weighs against an evaluation in excess of 50 percent for major depressive disorder prior to February 29, 2016 because the severity, frequency, and duration of the Veteran's symptoms were not manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, during this part of the appeal period. Specifically, the record shows that although the Veteran endorsed such symptoms as depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or worklike settings, the record does not show that his symptoms resulted in impairment with deficiencies in most areas during this time period. In particular, the mental status evaluations throughout the appeal showed no more than moderate symptoms. While the Veteran was noted to have been unemployed for a long period of time, the evidence indicates that his unemployability was caused or related to other factors in his life, including his long criminal history related to drug possession, which includes approximately 12 years of incarceration. Furthermore, although the Veteran reported that he was divorced at the time of the November 2010 VA examination, he reported that he was previously married for 32 years and that he had a relationship with his adult children. This is evidence against a finding of deficiencies in work, family relations, and the inability to establish and maintain effective relationships. The 50 percent rating contemplates difficulty in establishing and maintaining effective relationships. Thus, the difficulty in establishing and maintaining effective relationships is contemplated by the 50 percent rating. Although the April 2015 VA examiner noted that the Veteran had difficulty in adapting to stressful circumstances, including work or worklike settings, which is a criterion for a 70 percent rating, the overall evidence shows that the severity, frequency, and duration of the Veteran's symptoms were not manifested by occupational and social impairment, with deficiencies in most areas. The record, overall, does not show that that the Veteran had near-continuous panic or depression that affected his ability to function independently. In fact, the clinical findings in VA examination reports, including in November 2010 and April 2015, and numerous VA mental health progress notes, showed that the Veteran was able to perform activities of daily living. Additionally, the April 2015 VA examiner determined that the Veteran had occupational and social impairment with reduced reliability and productivity when asked to summarize his level of occupational and social impairment. While the adjudicator makes the determination of what evaluation is warranted for the service-connected psychiatric disorder, the examiner's conclusions that the Veteran's major depressive disorder was best summarized by the criteria described under the 50 percent evaluation is evidence against a finding that the Veteran's psychiatric disorder causes occupational and social impairment with deficiencies in most areas. This assessment approximates no more than a 50 percent disability rating. See 38 C.F.R. § 4.130, DC 9434. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to an initial disability rating in excess of 50 percent for major depressive disorder prior to February 29, 2016 is warranted. Rather, the evidence persuasively weighs against the claim for a higher rating. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). 4. Increased Rating for ED The Veteran asserts that he is entitled to a compensable disability rating for his ED. The Veteran is currently assigned an initial noncompensable evaluation for his ED under DC 7599-7522. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. When an unlisted disease or injury is encountered, it will be rated by analogy under a DC up using the first two digits from that part of the Schedule most closely identifying the body part or system affected and by using "99" for the last two digits. DC 7522 provides for a 20 percent rating for deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b, DC 7522. Deformity here means "a distortion of the penis, either internal or external." Williams v. Wilkie, 30 Vet. App. 134, 138 (2018). As noted above, the Board notes that the Veteran is already in receipt of SMC based on loss of use of a creative organ during the entire appeal period. Furthermore, the Veteran's service-connected epididymitis disability contemplates symptoms associated with his testicles. See 38 C.F.R. §§ 4.14, 4.115b, DC 7599-7524. Although prior to the appeal period, a June 1985 VA examination showed that the Veteran had a normal phallus. Likewise, although a March 1991 VA examination showed bilateral testicular atrophy, which was greater on the right, the Veteran's penis was not noted as abnormal or with a deformity. In fact, after the Veteran first complained of ED symptoms in June 1998, he did not assert any deformity of his penis. Likewise, the April 2004 VA clinic note that first prescribed medication for ED did not show that the Veteran had a deformed penis. Furthermore, although an August 2004 ultrasound of the Veteran's penis showed impressions related to his testicles, there was no indication that he had a distortion of the penis, either internal or external. A March 2011 VA surgery outpatient note showed that the Veteran had failed oral agents to treat his ED and now was interested in penile injections. A physical evaluation of his penis showed an uncircumcised phallus, with normal metros and no drainage. He was assessed as having ED and hypogonadism. In a January 2012 statement, the Veteran discussed his testicular and ED symptoms, as well as his infertility, but did not assert that his penis was distorted or had a deformity. In a September 2012 VA treatment record, the Veteran was noted to have ED and switched to a different medication to treat this symptom; however, this medical professional did not note the presence of any penile deformity after reviewing the Veteran's genitourinary system. Likewise, a January 2015 VA urology clinic note, during which a physical evaluation was performed, did not note any deformity of the penis. A September 2015 VA treatment record with a social worker showed that the Veteran had an uncircumcised penis and that the foreskin retracted easily. Although he was noted to have testicular and skin symptoms, no penis deformity was noted. The Veteran underwent a VA examination in September 2016 for the male reproductive system. At this examination, the Veteran declined a physical examination of his genitals. The examiner diagnosed that him with ED, atrophy of the testis, chronic epididymo-orchitis, and male hypogonadism. The claims file also includes November 2018 and July 2021 private medical opinions in which the medical professionals determined that the Veteran's epididymitis disability causes his ED. These medical professionals also opined, in general terms, that the Veteran's ED disability should be assigned a 20 percent disability rating. Given this evidence, the Board finds that the evidence persuasively weighs against finding that the Veteran's ED has manifested by a deformity of the penis with loss of erectile power during the appeal. Specifically, the medical evidence cited above shows that although the Veteran had symptoms associated with his testicular disability, there is no competent evidence of a deformity of the penis noted at any time on appeal. The presence of a deformity or distortion of the penis is absent following multiple inspections and evaluations of the Veteran's genitals since June 1998. A review of the November 2018 and July 2021 private medical opinions shows that the medical professionals contemplated and analyzed the symptoms associated with the Veteran's epididymitis in stating that a 20 percent disability rating is warranted for ED. An assignment of a separate compensable disability rating for ED based on these symptoms would amount to impermissible pyramiding, as the Veteran is in receipt of a compensable rating for the testicular symptoms. See 38 C.F.R. §§ 4.14, 4.115b, DCs 7599-522, 7599-7524. Overall, the record shows that the Veteran does not have a deformity of the penis at any time on appeal. Without deformity of the penis, an initial compensable rating under DC 7599-7522 is not warranted. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to an initial compensable disability rating for ED warranted. Rather, the evidence persuasively weighs against the claim for a higher rating. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch, 21 F.4th 776. REASONS FOR REMAND The Board finds that remand is warranted to provide the Veteran with a VA examination to ascertain the current severity of his major depressive disorder, and for the AOJ to issue a supplemental statement of the case (SSOC) for the increased rating claim for epididymitis. 5. Increased Rating for Major Depressive Disorder since February 29, 2016 The record shows that the Veteran was last examined for his psychiatric disability in April 2015. In a February 2016 statement, the Veteran asserted that his psychiatric symptoms had worsened in severity. Furthermore, in the March 2022 statement, the Veteran's attorney contended that the Veteran's major depressive symptoms had worsened since this VA examination as was shown by private psychiatric evaluations in October 2018 and February 2020. Thus, the Veteran should be reexamined to ascertain the current severity of his major depressive disorder symptoms. See 38 C.F.R. §§ 3.326, 3.327. 6. Initial Increased Rating for the Epididymitis Disability The Board must remand the increased rating claim for epididymitis because new and pertinent evidence was associated with the claims file since the issuance of the statement of the case (SOC) in April 2017. Generally, the Board may not consider additional evidence not previously reviewed by the AOJ unless a waiver of initial AOJ review is obtained from a claimant. Disabled American Veterans, et. al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304(c). Although 38 U.S.C. § 7105(e) provides an automatic waiver of initial AOJ review if a claimant submits evidence to the AOJ or the Board with, or after submission of a VA Form 9, this provision is only applicable to cases where the VA Form 9 was filed on or after February 2, 2013. 38 U.S.C. § 7105(e). While the Veteran filed his VA Form 9 for this claim after this date, 38 U.S.C. § 7105(e) does not apply to VA-generated evidence, such as VA examination reports and VA treatment records. In February 2019, the Board remanded the claim of entitlement to an initial compensable disability rating for epididymitis to schedule the Veteran for a VA examination to determine whether the Veteran has bilateral atrophy of the testes, or has had them at any time. The record shows that the Veteran underwent such an examination in April 2019. The record also shows that the AOJ issued a rating decision in December 2019 granting an increased rating of 10 percent for this disability since April 1, 1991. However, the record does not show that the AOJ has considered and readjudicated whether entitlement to an initial compensable disability rating prior to April 1, 1991, and in excess of 10 percent, thereafter, is warranted for epididymitis in light of this new VA-generated evidence. As there is no indication that the Veteran has waived initial AOJ adjudication, a remand is required in the case for the AOJ to consider the new evidence relevant to the claim for an increased rating for epididymitis. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to evaluate the current severity of his major depressive disorder symptoms. All appropriate tests should be accomplished, and all clinical findings should be reported in detail. 2. Readjudicate the claim of entitlement to an initial compensable disability rating for epididymitis, and in excess of 10 percent since April 1, 1991 in light of the new evidence associated with the claims file since the issuance of the April 2017 SOC, to include the April 2019 VA examination report. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hodzic, 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.