Citation Nr: 1003289 Decision Date: 01/22/10 Archive Date: 02/01/10 DOCKET NO. 07-17 271A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a higher initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 4. Entitlement to an effective date earlier than December 29, 2004, for the award of service connection for PTSD. 5. Entitlement to an effective date earlier than March 24, 2004, for the award of service connection for diabetes mellitus, with background diabetic retinopathy, erectile dysfunction, and early nuclear sclerotic cataracts in both eyes. 6. Whether new and material evidence has been received to reopen a claim of service connection for multiple sclerosis (MS). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Associate Counsel INTRODUCTION The Veteran had active military service from June 1968 to April 1970. He is a recipient of the Combat Infantryman's Badge and Silver Star. This matter comes before the Board of Veterans' Appeals (Board) on appeal of July 2006 and September 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned at a hearing in September 2009. A transcript of the hearing is of record. The Veteran has submitted new evidence in the form of a statement regarding his bilateral hearing loss, which relates to that issue on appeal. The Veteran specifically waived his right to have the RO consider this evidence in the first instance. 38 C.F.R. § 20.1304(c) (2009). The Board notes that a review of the claims file shows that the Veteran filed a claim for an increased rating for his diabetes mellitus; no date on the claim is shown. Additionally, VA examinations for his diabetes mellitus and related complications were obtained in July 2007. However, it does not appear that the RO adjudicated the Veteran's claim. The Board therefore refers that issue to the RO. The issues of a higher initial rating for PTSD and whether new and material evidence has been submitted to reopen the claim for service connection for MS are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran has bilateral hearing loss that is related to his military service. 2. The Veteran has tinnitus that is related to his military service. 3. Claims of entitlement to service connection for PTSD and herbicide exposure were denied by a decision of the RO in November 2001; the Veteran did not appeal. 4. An application to reopen the claim of service connection for PTSD on December 29, 2004 5. An application to reopen the claim of service connection for diabetes mellitus on March 24, 2005. 6. The RO established service connection for PTSD effective December 29, 2004. 7. The RO established service connection for diabetes mellitus, with background diabetic retinopathy, erectile dysfunction, and early nuclear sclerotic cataracts in both eyes, effective March 24, 2004, pursuant to the earlier effective date provisions for service connection grants under liberalizing legislation pursuant to 38 C.F.R. § 3.114(a)(3). CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the Veteran's bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2009). 2. Resolving reasonable doubt in favor of the Veteran, the Veteran's tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2009). 3. The criteria for the assignment of an effective date earlier than December 29, 2004, for the award of service connection for PTSD have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2009). 4. The criteria for the assignment of an effective date earlier than March 24, 2004 for the grant of service connection for diabetes mellitus, with background diabetic retinopathy, erectile dysfunction, and early nuclear sclerotic cataracts in both eyes have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.114, 3.400, 3.816 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to the issues of service connection for hearing loss and tinnitus, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. As to the remaining claims for the assignment of earlier effective dates, the Board notes that the Veteran was apprised of VA's duties to both notify and assist in correspondence dated in February 2006, December 2006, and February 2007. The notifications to the Veteran apprised him of what the evidence must show to establish entitlement to the benefits sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The notifications included the criteria for assigning disability ratings and for award of an effective date, see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Federal Circuit Court and Veterans Claims Court have clarified that the VA can provide additional necessary notice subsequent to the initial AOJ adjudication, and then go back and readjudicate the claim, such that the essential fairness of the adjudication - as a whole, is unaffected because the appellant is still provided a meaningful opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (where the Federal Circuit Court held that a SOC or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, after the February 2007 notice was provided to the veteran, the claim was readjudicated in a May 2007 SOC. Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), post-service medical records, Social Security Administration (SSA) records, and secured examinations in furtherance of his claims. VA has no duty to inform or assist that was unmet. II. The Merits of the Claims Service connection The Veteran contends that he has bilateral hearing loss and tinnitus as a result of military service. Law Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498 (1995). Certain chronic diseases, including sensorineural hearing loss, may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2009). Moreover, the absence of evidence of hearing loss in service is not a bar to service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Analysis As noted, the Veteran's DD 214 reveals that he received the Combat Infantry Badge and the Silver Star. Combat related acoustic trauma is therefore conceded. His entrance examination in May 1968 revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 5 10 LEFT 10 0 0 5 30 His discharge examination in April 1970 revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 0 0 0 0 0 The Veteran was afforded a VA examination in July 2007. His claims file was not reviewed. The Veteran had puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 40 65 80 LEFT 15 15 50 65 80 Speech audiometry (in accordance with the Maryland CNC test) revealed speech recognition ability of 88 percent in the right ear and 78 percent in the left ear. He was diagnosed with bilateral normal hearing from 500 to 1000 Hz with moderate to severe loss at higher frequencies. The Veteran reported military noise exposure as a result of being in the infantry, and having tinnitus since a shell explosion in 1970. The examiner opined the configuration of the hearing loss was consistent with his reported noise exposure, but was unable to render an opinion regarding hearing loss. With regards to his tinnitus, the examiner opined that with onset following a shell explosion and continuing since that time, it was as likely as not related to his service history of acoustic trauma. A subsequent opinion by a different examiner obtained in August 2007, following a review of the claims file, reveals that the Veteran's bilateral hearing loss and tinnitus were opined to be not caused by, or a result of, military service. The rationale was that the Veteran had normal hearing levels bilaterally upon military separation and no complaint of tinnitus was found in this STRs. Additionally, the examiner opined that the Veteran only had limited (two years) military service, with construction noise exposure over a longer period of time. Here, there is evidence that the Veteran currently has bilateral hearing loss as defined by VA and tinnitus. Additionally, as the Veteran is a combat veteran and contends that he had combat related noise exposure, acoustic trauma is conceded. See 38 U.S.C.A. § 1154(b) (West 2002). Caluza elements (1) and (2) have therefore been met. A nexus between the Veteran's current disabilities and acoustic trauma (Caluza element (3)) is still needed. Two VA opinions have been obtained. The July 2007 examiner was unable to opine as to the etiology of the Veteran's bilateral hearing loss, but did note that his configuration of hearing loss was consistent with his reported noise exposure. Additionally, the examiner opined that the Veteran's tinnitus was related to his military service. However, the August 2007 examiner opined that the Veteran's bilateral hearing loss and tinnitus were not related to his service. The Board notes that the July 2007 examiner did not have the benefit of reviewing the claims file, unlike the August 2007 examiner. However, the July 2007 examiner did take into account the Veteran's reported history. A medical examiner's opinion cannot be discounted solely because it was based on the Veteran's reported medical history, unless the Veteran is not credible. See Coburn v. Nicholson, 19 Vet. App. 427 (2006) (emphasizing that the Board may not disregard a medical opinion solely on the rationale that the medical opinion is based on a history provided by the Veteran; rather, the Board must assess the Veteran's credibility in reporting the statements to the medical examiner). With regards to the Veteran's credibility, the Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). In this regard, the Veteran has made repeated statements that he developed bilateral hearing loss and tinnitus as a result of combat related noise exposure. He feels that his acoustic trauma is well-established; as noted above, acoustic trauma has been conceded. The Board finds the Veteran's statements in this case are credible. The undersigned also found the Veteran's testimony to be believable. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). Furthermore, the Board notes that difficulty hearing and tinnitus are subjective, and the kind of conditions to which lay testimony is competent. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno at 469; see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). Therefore, although the July 2007 examiner did not review the claims file, the Board still finds that examiner's opinion regarding tinnitus as probative since it was based upon the Veteran's credible reported history. Further, although the July 2007 examiner did not specifically render an opinion as to the etiology of the Veteran's bilateral hearing loss, she did note that his configuration of hearing loss was consistent with his reported noise exposure, and the Veteran reported his military noise exposure. Accordingly, the Board finds that the July 2007 VA examination lends support toward finding a positive nexus regarding the Veteran's bilateral hearing loss to his military service. In light of the two different VA opinions by different examiners, the Board finds that the medical nexus evidence is in relative equipoise. In cases where the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The Board therefore finds that there is support for the conclusion that the Veteran's bilateral hearing loss and tinnitus are attributed to his period of active military service. Consequently, on the basis of the above analysis, and after consideration of all of the evidence, the Board finds it is at least as likely as not that the Veteran's bilateral hearing loss and tinnitus are attributable to his active military service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Earlier effective dates The Veteran contends that the effective dates of the awards of service connection for PTSD and diabetes mellitus, with background diabetic retinopathy, erectile dysfunction, and early nuclear sclerotic cataracts in both eyes, should be earlier than the assigned dates of December 29, 2004, and March 24, 2004, respectively; he contends that the effective dates should be in 2001 when he was first filed a claim for service connection for PTSD and Agent Orange exposure. Law Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity 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 later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 (West 2002). The effective date of a reopened claim is the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(2), (r) (2009). With respect to earlier effective date claims for service connection for diseases presumed to be caused by herbicide or Agent Orange exposure, VA has issued special regulations to implement orders of a United States district court in the class action of Nehmer v. United States Department of Veteran's Affairs. 38 C.F.R. § 3.816 (2009). See Nehmer v. U.S. Veterans Admin., 32 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. U.S. Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal 1999) (Nehmer II); Nehmer et al v. Veterans Admin. of the Gov't of the U. S., 284 F. 3d 1158 (9th Cir. 2002) (Nehmer III). In pertinent part, a Nehmer class member is defined as a Vietnam Veteran who has a covered herbicide disease. 38 C.F.R. § 3.816(b)(1)(i) (2009). The term covered herbicide diseases includes type II diabetes mellitus. 38 C.F.R. § 3.816(b)(2)(i) (2009). This regulation applies to claims for disability compensation for the covered herbicide disease that were either pending before VA on May 3, 1989, or were received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease. 38 C.F.R. § 3.816(c) (2009). Diabetes mellitus, type II, was included as a presumptive Agent Orange disease under 38 C.F.R. § 3.309(e), which was made effective by VA as of July 9, 2001. The legislation was then made retroactive by the United States Court of Appeals for the Federal Circuit back to May 8, 2001. See Liesegang v. Secretary of Veterans Affairs, 312 F.3d 1368 (Fed. Cir. 2002). Accordingly, if the Veteran's claim was received between May 3, 1989 and May 8, 2001, the effective date must be the date of the claim. Otherwise, the effective date of the award will be determined in accordance with § 3.114, which addresses effective dates when service connection has been granted based on a liberalizing change in the law (i.e. the inclusion of type II diabetes mellitus as a disease formally associated with exposure to herbicide agents). Under 38 C.F.R. § 3.114, an effective date one year prior to the date of the Veteran's claim may be awarded when the evidence shows that the Veteran met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue (May 8, 2001) and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. 38 C.F.R. § 3.114. The eligibility criteria include a diagnosis of the claimed disorder. Analysis In May 2001, the Veteran filed a claim for service connection for PTSD. He also filed an ambiguous claim for service connection for "Agent Orange exposure". The Board recognizes the fact that the Veteran had a diagnosis of diabetes mellitus at the time he filed his claim. However, the fact remains that neither the May 2001 claim for benefits, nor any subsequent correspondence, indicated that the Veteran was seeking service connection for diabetes mellitus. While it is true that any communication or action indicating an intent to apply for one or more benefits administered by VA may be considered an informal claim, see 38 C.F.R. § 3.155(a), "[t]he mere presence of the medical evidence [in the record] does not establish an intent on the part of the veteran" to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998) In November 2001, the claims for service connection for PTSD and Agent Orange exposure were denied. The Veteran filed a notice of disagreement in September 2002. A Statement of the Case was provided to the Veteran on April 23, 2003. Thus, the Veteran had 60-days (June 23, 2003) to file a substantive appeal. 38 C.F.R. § 20.302(b) (2009). The Veteran submitted a copy of a substantive appeal in October 2005, which was dated May 7, 2003 and which he contends was originally mailed to the RO on May 14, 2003. He further contends that he received correspondence from the RO dated May 20, 2003, which he contends shows that his substantive appeal was received. However, the evidence does not indicate that such appeal was ever received by the RO. Indeed, the first correspondence received from the Veteran following the issuance of the April 2003 SOC is date stamped on December 29, 2004. The Court of Appeals for Veterans Claims (Court) has applied a presumption of regularity to all manner of VA processes and procedures. See Woods v. Gober, 14 Vet. App. 214, 220 (2000). In applying this legal principle to the present instance, the presumption of regularity applies to VA's actions following receipt of a claim. It is presumed that VA properly processed all claims submitted by the Veteran or his representative, including affixing evidence of the date of receipt by VA, and associating the claim with the claims folder. Clear evidence is required to rebut the presumption of regularity. See id.; see also Baldwin v. Brown, 13 Vet. App. 1, 6 (1999), Mindenhall v. Brown, 7 Vet. App. 271 (1994). In reviewing the evidence of record, the Board finds that the presumption of regularity has not been rebutted. Although the Veteran contends that he received a letter from the RO dated May 20, 2003, the claims file does not contain a copy of that letter, nor is there any indication that such a letter was sent. Moreover, there is no copy of the Veteran's substantive appeal with evidence of the date of receipt by VA in the claims file. Additionally, a review of the Veterans Appeals Control and Locator System (VACOLS) indicates that no substantive appeal was ever received by the RO. Without evidence to the contrary and with the presumption of regularity of the official acts of public officers, the Board must conclude that any mail sent to the RO would have been received and associated with the claims file. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1998). The Board finds the Veteran's assertion that he sent the substantive appeal in May 2003, along with a copy of the appeal, is not sufficient to rebut the presumption of regularity in the administrative process. A photocopy of the appeal does not show that such appeal was ever received by the RO. Indeed, given the paucity of collaborative evidence, the Board does not find the Veteran's assertions to be credible. Therefore, since the presumption of regularity in the administrative process has not been rebutted, and the Veteran's contentions on this question are deemed suspect, the Board finds that no substantive appeal was received by the RO, rendering the November 2001 decision final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2009). Private medical records show that the Veteran was diagnosed with diabetes mellitus prior to May 8, 2001. The evidence shows that he has met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue (May 8, 2001) and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. 38 C.F.R. § 3.114. On December 29, 2004, the RO received an informal claim for service connection from the Veteran. On January 21, 2005, the RO received a formal claim from the Veteran, which included an application to reopen the claim of service connection for PTSD. The Veteran also indicated that he was filing for other disabilities due to exposure to Agent Orange, but did not specify what those disabilities were. In response to correspondence from the RO dated in February 2005 asking the Veteran to specify what disabilities he was claiming due to exposure to Agent Orange, the Veteran responded in March 2005 that he was claiming diabetes mellitus. PTSD Because the November 2001 RO decision is final, the claim by which the Veteran was granted service connection for PTSD, and which led to this appeal, was a claim to reopen a previously denied claim. The Court has held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. Juarez v. Peak, 21 Vet. App. 537, 539-540 (2008) (citing Bingham v. Nicholson, 421 F. 3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d. 1333, 1337 (Fed. Cir. 2005); Flash v. Brown, 8 Vet. App. 332, 340 (1995)) . Here, the evidence clearly shows that the final disallowance, that is, the last disallowance that is determined to be a final decision by virtue of having not been appealed, is the November 2001 denial by the RO. The evidence also clearly shows that the date of receipt of the informal claim to reopen was December 29, 2004, and that it is a claim re- opened after final disallowance. The only effective date for award of service connection that may be assigned is the presently assigned date of December 29, 2004. The Board notes that the date on which entitlement arose is not relevant in the present context because a date of entitlement earlier that the current effective date could not result in an earlier date because, as noted above, the effective date will be the date of receipt of the claim to reopen or the date entitlement arose, whichever is the later. In this case, December 29, 2004, the date of receipt of the application to reopen, is the earliest date that service connection may be awarded. If the date of entitlement arose was later than December 29, 2004, that would become the new effective date, and the Veteran's claim for an earlier effective date would still be denied. Diabetes mellitus, with background diabetic retinopathy, erectile dysfunction, and early nuclear sclerotic cataracts in both eyes Although the Veteran's claim was not received until March 24, 2005 (the date he specifically indicated that he was claiming that disability), the RO assigned an effective date of March 24, 2004. As referenced above, VA issued regulations creating a presumption of service connection for diabetes mellitus, type II, effective May 8, 2001. 66 Fed. Reg. 23,166. Because the Veteran did not file his claim on or before May 8, 2001, Nehmer is inapplicable to the instant case, and therefore the effective date cannot be earlier than the effective date of the liberalizing law, May 8, 2001, and cannot be retroactive for more than one year from the date of application. 38 U.S.C.A. § 5110(g) (West 2002); McCay v. Brown, 9 Vet. App. 183 (1996), aff'd by 106 F.3d 1577 (Fed. Cir. 1997); 38 C.F.R. § 3.114 (2005). The RO established service connection for diabetes mellitus, with background diabetic retinopathy, erectile dysfunction, and early nuclear sclerotic cataracts in both eyes as a disease presumed to be due to exposure to herbicide or Agent Orange and established the effective date of the award as March 24, 2004 in accord with 38 C.F.R. § 3.114(a)(3). See also Liesegang, 312 F.3d 1368. The only effective date for award of service connection that may be assigned is the presently assigned date of March 24, 2004. While the Board recognizes the Veteran's belief that the effective dates for his grants of service connection for PTSD and diabetes mellitus, with background diabetic retinopathy, erectile dysfunction, and early nuclear sclerotic cataracts in both eyes, should be earlier than December 29, 2004, and March 24, 2004, respectively, because of his having initially filed for service connection in 2001, the governing legal authority is clear and specific and VA is bound by it. As a result, the Veteran's claims for earlier effective dates are denied. The Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide even an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Therefore, on the basis of the above analysis, and after consideration of all the evidence, the Board finds that the preponderance of the evidence is against these earlier effective date claims. The earliest possible effective date for PTSD is the currently assigned date of December 29, 2004, and the earliest possible effective date for diabetes mellitus, with background diabetic retinopathy, erectile dysfunction, and early nuclear sclerotic cataracts in both eyes is March 24, 2004. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to an effective date earlier than December 29, 2004, for the award of service connection for PTSD is denied. Entitlement to an effective date earlier than March 24, 2004, for the award of service connection for diabetes mellitus, with background diabetic retinopathy, erectile dysfunction, and early nuclear sclerotic cataracts in both eyes is denied. REMAND The Veteran was last afforded a VA examination for his service-connected PTSD in June 2006. At his hearing in September 2009, the Veteran's testimony indicated that his PTSD symptomatology has worsened since the last examination in June 2006. Considering that the Veteran's testimony indicated that his symptomatology has worsened, and the fact that the Veteran has not been afforded a comprehensive VA compensation and pension examination to assess the severity of his disability since June 2006, the Board finds that it is necessary to secure an additional examination to ascertain the Veteran's level of disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). Further, during his personal hearing, the Veteran stated that his PTSD prevented him for obtaining and/or retaining employment. The Veteran has therefore raised the issue of a total disability rating for compensation based on individual unemployability (TDIU). See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (once a veteran submits evidence of medical disability and additionally submits evidence of unemployability, VA must consider total rating for compensation based upon individual unemployability). The Court recently held that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id at 455. Therefore, on Remand, the RO readjudication of the Veteran's claim for an increased disability rating for PTSD should include the issue of TDIU. As to the petition to reopen the claim for service connection for MS, the Board's attention is drawn to a June 2006 statement from TTM, the Veteran's treating social worker/therapist. TTM argues that the claim should be reopened and granted based on an October 2000 medical opinion from C.N. Bash, M.D., and a sworn statement from the Veteran's wife. He observes that Dr. Bash provided an opinion that related the Veteran's MS to symptoms that were first identified within seven years of the Veteran's service discharge. Neither opinion from Dr. Bash nor the personal statement from the Veteran's wife are of record. Given the potential probative/material value of this evidence and VA's duty to assist the Veteran, the matter must be Remanded to permit the Veteran an opportunity to submit this evidence. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he submit a copy of the October 2000 medical opinion from Dr. Bash and the sworn statement from his wife. He should also be again advised of the evidence necessary to reopen his claim for service connection for multiple sclerosis. A copy of the letter should be included in the claims file. 2. Schedule the Veteran for a VA psychiatric examination. The examiner should review the claims file. The examiner must state whether the veteran's service-connected PTSD more nearly approximates a disability characterized by: a. 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; or difficulty in establishing and maintaining effective work and social relationships; or b. Occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech that is 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 worklike setting); or an inability to establish and maintain effective relationships; or c. 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; or memory loss for names of one's close relatives, occupation, or own name. d. The examiner should comment on whether the Veteran's PTSD, in and of itself, precludes him from obtaining or maintaining gainful employment. Rationale for that opinion should be provided. The examiner must also enter a complete multiaxial evaluation, and assign a GAF, together with an explanation of what the score represents in terms of his psychological, social, and occupational functioning. A complete rationale for all opinions must be provided. Any report prepared must be typed. All indicated tests should be conducted and those reports should be incorporated into the examination and associated with the claims file. The AOJ should ensure that the examination report complies with this remand and the questions presented. The Veteran should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his claim, to include denial. See 38 C.F.R. § 3.655 (2009). 3. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the petition to reopen the claim for service connection for PTSD and claim for an increased rating for PTSD, to include entitlement to TDIU, in light of all information or evidence received. If the benefits sought are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ MICHAEL A. HERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs