Case A26034817

Summary

The Veteran served from October 2008 to July 2013. The Veteran appealed a July 2020 rating decision that granted a 50 percent rating for a psychiatric disability and denied service connection for right lower extremity radiculopathy and a disorder of the penis. The Veteran withdrew the appeal regarding amyotrophic lateral sclerosis. The Board granted service connection for right lower extremity radiculopathy, finding it linked to the service-connected lumbar spine disability, supported by a February 2020 EMG report. Service connection for a disorder of the penis, claimed as erectile dysfunction, was denied due to a lack of chronic service-connectable disorder and insufficient evidence linking it to service or service-connected disabilities, despite the Veteran's competent testimony. The Board granted a 70 percent rating for the psychiatric disability, finding the symptoms more nearly approximated deficiencies in most areas, including difficulty adapting to stress and deficiencies in family relations and mood, based on a holistic analysis of VA and private treatment records and a VA examination. The claim for obstructive sleep apnea was remanded due to a duty to assist error, as the Veteran's service treatment records indicated a 2013 diagnosis of sleep apnea, but this diagnosis was not corroborated, and the Board found a VA examination was warranted to determine the condition and its service connection.

Full Decision Text

Citation Nr: A26034817
Decision Date: 04/15/26	Archive Date: 04/15/26

DOCKET NO. 201216-128951
DATE: April 15, 2026

ORDER

The claim for service connection for amyotrophic lateral sclerosis has been withdrawn.

Service connection for right lower extremity radiculopathy is granted.

Service connection for a disorder of the penis is denied.

A 70 percent rating for a psychiatric disability is granted. 

REMANDED

Service connection for sleep apnea is remanded.

FINDINGS OF FACT

1. The Veteran withdrew the appeal regarding the claim for amyotrophic lateral sclerosis.  

2. The right lower extremity radiculopathy has been linked to the service-connected lumbar spine disability.  

3. The Veteran does not have a disorder of the penis, and any erectile dysfunction is not related to service or service-connected disability.  

4. The psychiatric disability resulted in impairment approximating deficiencies in most areas.  

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the claim for service connection for amyotrophic lateral sclerosis have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for service connection for right lower extremity radiculopathy have been met.  38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310.  

3. The criteria for service connection for a disorder of the penis have not been met.  38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310.  

4. The criteria for a 70 percent rating for a psychiatric disability have been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.130 Diagnostic Code 9411.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from October 2008 to July 2013.  

In March 2020, the Veteran filed a VA 21-526EZ.  In a July 2020 rating decision, in relevant part, the agency of original jurisdiction (AOJ) granted a 50 percent rating for a psychiatric disability and denied the claims for service connection.  

In the December 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket.  In October 2024, the Veteran withdrew the hearing request.  Therefore, the Board may only consider the evidence of record at the time of the July 2020 AOJ decision on appeal, as well as any evidence submitted by the Veteran or representative within 90 days following receipt of the withdrawal of the hearing request.  38 C.F.R. § 20.302(b).  If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.302(b), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence.  38 C.F.R. § 3.2501.  If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision. 

As a final procedural matter, the Board notes that in the October 2024 appellate brief, the Veteran's attorney discusses an October 2020 rating decision that increased the rating for the psychiatric disability from August 2020, when VA form 21-526EZ and VA form 21-8940 for a total disability rating based on individual unemployability (TDIU) were received.  In the subsequent VA Form 10182, the Veteran explicitly chose the July 2020 rating decision.  In Terry v. McDonough, the Court of Appeals for Veterans Claims (Court) held that a Veteran is not required to appeal only the most recent decision.  37 Vet. App. 1, 26 (2023).  The Board finds the Veteran's selection of the July 2020 rating decision as the rating decision on appeal was proper and will limit its evidentiary consideration based on this selection.  

Withdrawal

The Board may dismiss any appeal that fails to allege specific error
 and VA form 21-8940 for a total disability rating based on individual unemployability (TDIU) were received.  In the subsequent VA Form 10182, the Veteran explicitly chose the July 2020 rating decision.  In Terry v. McDonough, the Court of Appeals for Veterans Claims (Court) held that a Veteran is not required to appeal only the most recent decision.  37 Vet. App. 1, 26 (2023).  The Board finds the Veteran's selection of the July 2020 rating decision as the rating decision on appeal was proper and will limit its evidentiary consideration based on this selection.  

Withdrawal

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105.  An appeal may be withdrawn as to any issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 19.55.  Withdrawal may be made by the appellant or his or her authorized representative.  38 C.F.R. § 19.55.  The appellant, through his authorized representative, withdrew the appeal with respect to the claim for service connection for amyotrophic lateral sclerosis in an October 2024 statement.  There remain no allegations of errors of fact or law for appellate consideration for this issue; it must be dismissed.

Service Connection

Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.  Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).  

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310(a).  Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  38 C.F.R. § 3.310(b).

Radiculopathy

The record reveals diagnoses of lumbar radiculopathy of the right lower extremity,  and a February 2020 electromyography (EMG) report reveals findings of right lower extremity radiculopathy.  Service connection is in effect for a lumbar spine disability.  Although the record includes VA "back" examinations which do not reveal findings or diagnosis of associated right lower extremity nerve impairment, the Board finds the EMG report in conjunction with the Veteran's histories of radicular symptoms are more probative.  Thus, the claim for service connection is granted.

Erectile Dysfunction

After consideration of the record, the Board finds service connection is not warranted for a disorder of the penis, claimed as erectile dysfunction.  The Board has carefully reviewed the evidence of record and finds the Veteran does not have a service-connectable disorder of the penis.  The service and postservice treatment and examination records are negative for history or clinical evidence of a penis disorder or erectile dysfunction, including reported use of medication for erectile dysfunction, and private treatment records reveal that the Veteran is sexually active.  The Board acknowledges that the Veteran is competent to report conditions capable of lay observation, such as erectile dysfunction.  The Veteran has provided no information about the erectile dysfunction, or any other penis abnormality, based on which the Board could determine that he has a chronic disorder, however.  An overall review of the record suggests that any erectile dysfunction is the result of acute episodes that resolve rather than a chronic service-connectable disorder.  The Board again notes that there is no history of medication use or explanation as to how it was determined the Veteran had a penile disorder, and the record includes histories of sexual activity during the period of the claim.  

Furthermore, even if the Board were to find the history of erectile dysfunction sufficient to show a current disability, the record does not suggest that the erectile dysfunction is secondary to service-connected disability.  VA examinations for the "back" report that there was no other neurologic abnormality or other pertinent physical findings, complications, conditions, signs, symptoms, or scars related to the service-connected disabilities and the VA examination for the psychiatric disability reports that there were no "other symptoms" attributable to the psychiatric disability not listed.  The Veteran has provided no information that could link his reported penis condition to a service-connected condition.  In the absence of such evidence, the Board finds service connection is not warranted.  The Board recognizes that the
 of the claim.  

Furthermore, even if the Board were to find the history of erectile dysfunction sufficient to show a current disability, the record does not suggest that the erectile dysfunction is secondary to service-connected disability.  VA examinations for the "back" report that there was no other neurologic abnormality or other pertinent physical findings, complications, conditions, signs, symptoms, or scars related to the service-connected disabilities and the VA examination for the psychiatric disability reports that there were no "other symptoms" attributable to the psychiatric disability not listed.  The Veteran has provided no information that could link his reported penis condition to a service-connected condition.  In the absence of such evidence, the Board finds service connection is not warranted.  The Board recognizes that the Veteran was not afforded a VA examination.  The Board finds the low standards necessitating an examination have not been met, however.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Notably, the pre-decisional record does not suggest that the Veteran has a chronic service-connectable disorder or suggest a link between the reported "penile disorder" and service or service-connected disability.  Consequently, a VA examination was not warranted.

Increased Rating

Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria.  Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130.  The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages.  Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).  

The psychiatric disability is evaluated under Diagnostic Code 9411, which provides a 50 percent disability rating when there is 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; and difficulty in establishing and maintaining effective work and social relationships.  A 70 percent rating is warranted when the evidence shows 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); and inability to establish and maintain effective relationships.  

The record includes VA and private treatment records and an April 2020 VA examination record.  Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's psychiatric disability has been manifested by symptoms that more nearly approximate deficiencies in most areas based on reported symptoms including difficulty in adapting to stressful circumstances and reported deficiencies in family relations and mood.  The Veteran has indicated that he is seeking a 70 percent rating for this period, rather than an even higher rating; thus, the claim is granted in full.  This appeal raises no additional issues.  In making this determination, the Boards notes that an appeal of entitlement to a total disability rating based on individual unemployability (TDIU) was before the Board in a separate appeal; the issue was bifurcated from this issue.  

REASONS FOR REMAND

The claim for service connection for obstructive sleep apnea is remanded to correct a duty to assist error that occurred prior to the rating decision on appeal.  A September 2017 VA treatment record reveals history of obstructive sleep apnea diagnosed in 2013.  The evidence of record does not corroborate this diagnosis.  However, the Board finds the history of a diagnosis the year of separation from service was sufficient to meet the low standards necessitating an examination to determine whether the Veteran has obstructive sleep apnea related to service.  

The matter is REMANDED for the following action:

Afford the Veteran a VA examination to determine whether the Veteran has obstructive sleep apnea.  If obstructive sleep apnea is diagnosed, the examiner should state whether it was incurred during service,
 is remanded to correct a duty to assist error that occurred prior to the rating decision on appeal.  A September 2017 VA treatment record reveals history of obstructive sleep apnea diagnosed in 2013.  The evidence of record does not corroborate this diagnosis.  However, the Board finds the history of a diagnosis the year of separation from service was sufficient to meet the low standards necessitating an examination to determine whether the Veteran has obstructive sleep apnea related to service.  

The matter is REMANDED for the following action:

Afford the Veteran a VA examination to determine whether the Veteran has obstructive sleep apnea.  If obstructive sleep apnea is diagnosed, the examiner should state whether it was incurred during service, is etiologically related to service, or was caused or aggravated by service-connected disability.  

 

T. REYNOLDS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Snyder, N.

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.