Citation Nr: 1237951	
Decision Date: 11/06/12    Archive Date: 11/16/12

DOCKET NO.  10-20 183	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to service connection for residuals of a head injury.

2.  Entitlement to service connection for residuals of a neck injury.

3.  Entitlement to service connection for residuals of a left knee injury.

4.  Entitlement to service connection for bilateral pes planus.

5.  Whether there is new and material evidence to reopen a claim for service connection for bilateral hearing loss and, if so, whether service connection is warranted.

6.  Whether there is new and material evidence to reopen a claim for service connection for residuals of a right knee injury and, if so, whether service connection is warranted.


7.  Entitlement to an initial rating higher than 30 percent for ischemic heart disease prior to December 21, 2010, and to a rating higher than 60 percent since.

8.  Entitlement to an effective date earlier than March 9, 2009, for the grant of service connection for the ischemic heart disease.

9.  Entitlement to an effective date earlier than December 21, 2010, for the grant of a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Calvin Hansen, Attorney


ATTORNEY FOR THE BOARD

Adrian D. Jackson, Counsel


INTRODUCTION

The Veteran had active military service from July 1968 to April 1970.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

In September 2009, the RO granted service connection for posttraumatic stress disorder (PTSD) and tinnitus.  However, service connection was denied for a left knee disability, residuals of a head injury, neck injury, pes planus, and bilateral hearing loss.  The RO reopened the claim for service connection for bilateral hearing loss, because there was new and material evidence, but then ultimately denied this claim on its underlying merits (i.e., on a de novo basis).  

Conversely, the RO determined there was not new and material evidence to reopen a claim for service connection for a right knee disability, so denied the petition to reopen this other claim and, therefore, did not reach the merits.  In statements subsequently received the Veteran disagreed with the rating assigned for his PTSD and the denials of service connection for his left knee, head, neck, and bilateral foot disabilities, as well as the denial of his petition to reopen his claim of entitlement to service connection for his right knee disability.  He eventually perfected his appeal of these claims to the Board.  See 38 C.F.R. § 20.200 (2011) (An appeal to the Board consist of a timely filed notice of disagreement (NOD) in writing and, after receipt of a statement of the case (SOC), a timely filed substantive appeal (VA Form 9 or equivalent statement)).

In an October 2011 decision, however, the RO increased the rating for the PTSD from 30 to 50 percent, and the Veteran resultantly withdrew his appeal of that claim the same month.  See 38 C.F.R. § 20.204.

Also earlier that year, in June 2011, the RO had granted service connection for ischemic heart disease (IHD) and had assigned an initial 30 percent rating retroactively effective as of July 6, 2009, and a higher 60 percent rating as of December 21, 2010.  In response, the Veteran disagreed with the effective date of that grant of service connection, although his attorney incorrectly listed December 21, 2010, as the effective date of the grant of service connection when, in actuality, that was when the Veteran received the higher 60 percent rating, up from the initial 30 percent rating that had been assigned as of July 6, 2009.  So that earlier date was the effective date of the grant of service connection.  The Veteran also appealed for higher ratings for his IHD, both prior to and since December 21, 2010.  See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (indicating he had to separately appeal these "downstream" issues regarding the ratings and effective dates assigned once this disability was determined to be related to his military service, i.e., service connected).


In August 2011, the RO also granted a TDIU, also retroactively effective from December 21, 2010.  As well, in September 2011, the RO granted an earlier effective date of March 9, 2009, for the grant of service connection for the IHD.  But the Veteran continued to contest (and perfected appeals concerning) even this revised effective date for the grant of service connection for his IHD and the ratings assigned for this disability as well as the effective date of the grant of his TDIU.

Regarding the RO's decision to reopen the claim for bilateral hearing loss and its denial of the petition to reopen the claim for a right knee disability, so, too, must the Board make this threshold preliminary determination of whether there is new and material evidence concerning these claims, irrespective of what the RO determined, because this initial determination affects the Board's jurisdiction to proceed further and adjudicate these claims on their underlying merits.  If there is not new and material evidence concerning these claims, that is where the analysis must end, regardless of what the RO concluded, because further Board analysis of these claims is neither required nor permitted.  See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); see also 
VAOPGCPREC 05-92 (March 4, 1992).  Conversely, if there is new and material evidence, the Board must reopen these claims, like the RO did, and review their former dispositions.  38 U.S.C.A. § 5108 (West 2002).

For reasons and bases that will be discussed, the Board agrees there is new and material evidence to reopen the claim for bilateral hearing loss.  However, this claim requires further development before being readjudicated on its underlying merits, so, rather than immediately deciding this claim, the Board instead is remanding this claim to the RO for this necessary further development.  The Board also is remanding the claims for service connection for residuals of head, left knee, and neck injuries.  Whereas the Board is going ahead and deciding the remaining claims.



FINDINGS OF FACT

1.  The Veteran's pre-induction enlistment physical examination found that he had pes planus (flat feet), and in past pleadings he has conceded having this condition prior to beginning his military service.

2.  The weight of the evidence, including a VA medical opinion obtained in August 2009, indicates his pre-existing pes planus did not permanently worsen during or as a result of his military service.

3.  In an unappealed December 2003 decision, the RO initially considered and denied his claim for service connection for bilateral hearing loss, which he alleged was the result of repeated exposure to loud noise during his military service; in denying this claim, however, the RO noted that the results of audiometric testing did not establish sufficient hearing loss to be considered a ratable disability by VA standards, meaning according to the threshold minimum requirements of 38 C.F.R. § 3.385.

4.  But since that December 2003 decision, he has submitted additional medical evidence supportive of his claim, specifically, records showing current diagnoses of hearing loss and a medical nexus opinion etiologically linking this hearing loss to noise exposure during his military service; so this additional evidence, when considered along with the evidence previously of record, is not cumulative or redundant, relates to an unestablished fact necessary to substantiate this claim, raises a reasonable possibility of substantiating this claim, and therefore is so significant that it must be considered in order to fairly decide this merits of this claim.

5.  In an unappealed April 1981 rating decision, the RO initially considered and denied his claim for service connection for a right knee disorder.

6.  The additional evidence received or otherwise obtained since that April 1981 rating decision is cumulative or redundant of evidence already considered in that decision or does not raise a reasonable possibility of substantiating this claim.

7.  Since the receipt of his claim for IHD, this disease has required medication and cardiac catherization with a maximum workload of greater than 3 but less than 5 metabolic equivalents (METs), and ejection fractures of 64 and 65 percent but without evidence of chronic congestive heart failure, or a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent.

8.  The RO received a claim for service connection for PTSD on March 9, 2009.

9.  On July 6, 2009, the RO received additional claims for residuals of neck and head injuries and for pes planus.

10.  In September 2009, the RO granted service connection for PTSD and an initial 30 percent rating retroactively effective from March 9, 2009, the date of receipt of this claim.

11.  In November 2009, the RO received a claim for service connection for a heart disability secondary to the PTSD.

12.  In February 2010, the Veteran amended his claim to include service connection for IHD secondary to Agent Orange exposure. 

13.  A June 2011 rating decision granted service connection for IHD and assigned a 30 percent rating retroactively effective from July 6, 2009, and a 60 percent rating as of December 21, 2010.  The RO noted that a claim for pes planus had been received on July 6, 2009, and that, since the Veteran also had submitted evidence (that included clinical records showing a diagnosis of heart disease), in conjunction with that claim for pes planus, the date of receipt of the claim for pes planus was also the date of receipt of the claim for IHD.  The RO also initially considered, but ultimately deferred, the issue of entitlement to a TDIU.

14.  In July 2011, the Veteran noted disagreement with the effective date assigned for the grant of service connection for his IHD.

15.  In August 2011, the RO noted that his service-connected disabilities - PTSD, tinnitus, and IHD rendered him unemployable, so entitled to a TDIU.  The RO assigned an effective date of December 21, 2010, for the TDIU, which is the date of a VA compensation examination.  The RO explained that this is the date the Veteran met the schedular criteria for a TDIU (referring to 38 C.F.R. § 4.16(a)).

16.  In a September 2011 rating decision and supplemental SOC (SSOC), the RO awarded an earlier effective date of March 9, 2009, for the grant of service connection for the IHD.  The RO explained that this was date of the original claim for PTSD, which also had resulted in the receipt of evidence showing the additional presence of this heart disease.

17.  Prior to receipt of the claim on March 9, 2009, there were no pending requests for benefits related to a heart disability. 

18.  Prior to March 9, 2009, there also were no pending requests for a TDIU or allegation of unemployability on account of service-connected disability or disabilities.

19.  But since initially filing his claim for service connection for PTSD on March 9, 2009, the PTSD, tinnitus, and IHD have prevented the Veteran from obtaining and maintaining a substantially gainful occupation, so has rendered him unemployable and thus been totally disabling from an occupational standpoint (so not just since December 21, 2010).



CONCLUSIONS OF LAW

1.  The Veteran does not have bilateral pes planus or associated disability due to disease or injury incurred in or aggravated by his active military service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

2.  The RO's December 2003 decision denying his claim for service connection for hearing loss is final and binding on him based on the evidence then of record; however, there is new and material since that decision to reopen this claim.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.200, 20.1103 (2012).

3.  Since not appealed, the RO's April 1981 decision initially considering and denying his claim for service connection for a right knee disorder is final and binding on him based on the evidence then of record.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2012).

4.  And since that April 1981 decision, there is no new and material evidence to reopen this claim.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a) (2012).

5.  When resolving all reasonable doubt in his favor, the criteria are met for the higher 60 percent schedular rating for his IHD effectively since the initial receipt of his claim for service connection for PTSD on March 9, 2009, though he has not been entitled to any higher rating at any point since.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7005 (2012). 

6.  However, the criteria are not met for an effective date earlier than March 9, 2009, for the grant of service connection for this IHD.  38 U.S.C.A. §§ 5101, 5110 (West 2002); 38 C.F.R. §§ 3.1, 3.155, 3.157, 3.159, 3.400 (2012).

7.  The criteria are met, though, for an earlier effective date of March 9, 2009, for his TDIU.  38 U.S.C.A. §§ 5101, 5110 (West 2002); 38 C.F.R. §§ 3.1, 3.155, 3.157, 3.159, 3.400 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Duties to Notify and Assist

Before addressing the underlying merits of a claim, the Board generally is required to ensure that VA's duties to notify and assist the claimant with the claim have been satisfied under the Veterans Claims Assistance Act (VCAA).  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

Upon receipt of a complete or substantially complete application for benefits, VA must inform the claimant of any information and medical or lay evidence not of record:  (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and (3) that he is expected to provide.  See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002).

These notice requirements apply to all elements of the claim, including the "downstream" disability rating and effective date elements.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims (Court/CAVC) held that VA must both notify a claimant of the evidence and information necessary to reopen the claim and of the evidence and information necessary to establish entitlement to the underlying benefit being sought, i.e., service connection.  To satisfy this requirement, VA adjudicators are required to look at the bases for the denial in the prior decision and provide the claimant a notice letter describing what evidence would be necessary to substantiate those elements required to establish entitlement to service connection that were found insufficient in the previous denial.  VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial.  VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006).

Here, letters were sent in May and July 2009, prior to initially adjudicating the Veteran's claims in the September 2009 decision at issue, so in the preferred sequence.  The letters informed him of the evidence required to substantiate his claims for service connection and of his and VA's respective responsibilities in obtaining this supporting evidence.  He also was advised of the "downstream" disability rating and effective date elements of his claims, in the event service connection was granted.  See again Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  

The letters also complied in the holding in Kent v. Nicholson, 20 Vet App 1 (2006), in that they included discussion of the requirements for reopening a previously denied and unappealed claim, contained information concerning specifically why the claims were previously denied, and cited the criteria for establishing his underlying entitlement to service connection.  So he has received all required VCAA notice, and there is no pleading or contention that he has not.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (indicating VCAA notice errors, even if shown to exist, are not presumptively prejudicial, rather, must be judged on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but also, above and beyond that, showing how the error is unduly prejudicial, meaning outcome determinative of the claim).

His claim for service connection for bilateral hearing loss is being reopened, so even were the Board to assume for the sake of argument that he did not receive the type of notice contemplated by Kent, this failure still ultimately would be inconsequential and, therefore, at most nonprejudicial, i.e., harmless error.  38 C.F.R. § 20.1102.  This is especially true since, after reopening this claim, the Board is then remanding this claim to the RO for further development, rather than immediately readjudicating this claim on its underlying merits.

VA also has satisfied its duty to assist him with these claims by obtaining all potentially relevant evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The RO obtained all records that he and his attorney identified as possibly pertinent to the claims.  He also had VA compensation examinations, including in August 2009 for a medical nexus opinion concerning the etiology of his bilateral pes planus, but especially in terms of whether it was aggravated by his military service, such as on account of his training and other physical activity and responsibilities in service, which he cites as sources of concern.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); and 38 C.F.R. § 3.159(c)(4).  The reports of his more recent December 2010 and July 2011 VA examinations, and other evidence of record, contain the findings needed to properly adjudicate his claim for higher ratings for his IHD in terms of assessing its severity in relation to the applicable rating criteria.  So additional examination, or reexamination, is not needed.  38 C.F.R. §§ 3.327, 4.2.  See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Allday v. Brown, 7 Vet. App. 517, 526 (1995); VAOPGCPREC 11-95 (April 7, 1995); and Green v. Derwinski, 1 Vet. App. 121 (1991).

In regards to whether there is new and material evidence to reopen his claim for a right knee disability, VA is not obligated to schedule him for an examination for a medical nexus opinion unless and until there is new and material evidence to reopen this claim.  38 C.F.R. § 3.159(c)(4)(iii).  And in a service-connection claim, the requirement of a "contemporaneous" examination does not require a new examination based upon the mere passage of time.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007).

Also keep in mind that, in regards to his claims for higher ratings for his IHD and for earlier effective dates for the grant of service connection for this IHD and his TDIU, these claims arise from his disagreement with the initial ratings assigned for his IHD and the effective dates assigned following the granting of service connection for this disease and his TDIU.  Hence, his appeal of these claims concerns "downstream" issues.  And once service connection is granted, the claim as it arose in its initial context has been substantiated (proven), so the initial intended purpose of the notice served.  Thus, additional notice is not required concerning the "downstream" elements of the claim, including in terms of his disagreement with the ratings and/or effective dates assigned.  Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  According to the holding in Goodwin v. Peake, 22 Vet. App. 128 (2008), instead of issuing an additional VCAA notice letter in this situation concerning the downstream disability rating and effective date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue an SOC if the disagreement is not resolved.  And the RO did that.  The SOC cited the applicable statutes and regulations and contained discussion of the reasons and bases for not assigning higher ratings or earlier effective dates.  The Veteran therefore has received all required notice and assistance concerning the claims that are being adjudicated in this decision.  38 U.S.C.A. § 5103A.

Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail.  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 Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

II.  General Statutes, Regulations and Cases Pertaining to Service Connection

The Veteran attributes his bilateral pes planus and current foot problems to his military service - and especially to his experiences in combat during the Vietnam War.

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).


Stated somewhat differently, to establish entitlement to direct service connection for the claimed disability, there must be:  (1) competent and credible evidence confirming the Veteran has the claimed disability - or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Diseases initially diagnosed after service may be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service.  38 C.F.R. § 3.303(d).

But if chronicity of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim.  38 C.F.R. § 3.303(b).  Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service to, in turn, link current disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  That is, these second and third elements can be satisfied under 38 C.F.R. § 3.303(b) by competent and credible evidence demonstrating:  (1) the condition was observed ("noted") during service, (2) symptoms of that condition continued after service, and (3) the current condition is related to those continuing symptoms.  See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997).


For the showing of chronic disease in service, or within a presumptive period per § 3.307, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Subsequent manifestations of the same disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes.

Evidence relating a current disorder to service must be medical unless it concerns a disorder that may be competently demonstrated by lay observation.  Savage v. Gober, 10 Vet. App. 494-97.  In-service notation of a condition does not require medical evidence where "the condition is of a type as to which a lay person's observation is competent."  Id.  However, although prong (3) does not require medical nexus evidence, "because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent."  Id (citations omitted).

When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh the testimony and make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

Lay evidence also can be competent and sufficient evidence of a diagnosis or to establish etiology if:  (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).  But evidence must be both competent and credible to ultimately have probative value.  See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

So medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) and (b) (2011).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Medical evidence also is generally, though, as mentioned, not always, required to associate the claimed condition with a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999).

The determination as to whether these requirements for service connection are met is based on an analysis of all of the evidence of record, medical and lay, and the evaluation of its competency and credibility to, in turn, determine its ultimate probative value in relation to other relevant evidence.  See Baldwin v. West, 13 Vet. App. 1 (1999). 

All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 3.102.

III.  Whether Service Connection is Warranted for Bilateral Pes Planus

Considering the first element of the Shedden analysis, evidence of current disability, the Veteran had a VA compensation examination in August 2009 in response to his claim for service connection.  The examination and X-ray confirmed he has mild pes planus.  So although there is no disputing he has this claimed condition, questions remain as to its etiology - and particularly insofar as whether it was caused or aggravated by his military service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998).  

In regards to the second element of Shedden, in-service incurrence of a relevant disease or injury, reviewing the Veteran's service treatment records (STRs), the Board sees that his March 1968 pre-induction examination noted pes planus.  He also reported having cramping in his arches.

So there was evidence of bilateral pes planus even when entering service (according to his military entrance examination report), hence, even before any activity in service, physical or otherwise.  The presumption of soundness when entering service attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected ("noted").  See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions."  Id., at (b)(1).  Here, though, the results of that pre-induction examination clearly note bilateral pes planus even when entering service.

Where, as here, there was an actual objective clinical finding confirming the Veteran had bilateral pes planus when entering service, this, in turn, means VAOPGCPREC 3-2003 (July 16, 2003) and Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) do not apply, i.e., VA does not have to show by clear and unmistakable evidence both that he had this condition prior to service and that it was not aggravated by his service beyond its natural progression.  Instead, he, not VA, has the burden of proof of showing a chronic, i.e., permanent worsening of his pes planus while in service.  That is to say, if, as here, a pre-existing disability was noted upon entry into service, a Veteran cannot bring a claim for service connection for that disability, only instead a claim for 
service-connected aggravation of that disability.  And in that case, 38 U.S.C.A. § 1153 applies and the burden falls on him, not VA, to establish aggravation.  Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).  And independent medical evidence generally is needed to support a finding that the pre-existing disorder increased in severity during service beyond its natural progression.  See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994).

Here, though, once in service, there were no reported complaints referable to this pre-existing pes planus during his military service.  He served on active duty in the military for nearly two years, from July 1968 to April 1970.  In March 1970, in anticipation of separating from service, there were no reports regarding his feet, including as could be interpreted as a worsening of his pes planus.  In fact, to the contrary, he specifically answered "no" on the clinical questionnaire regarding whether he had foot trouble.  His military service ended the next month.

Many years later, in September 2009, in reporting his history from service, the Veteran indicated he was issued military gear in December 1968 for Vietnam.  He said that, for the first 2 weeks, he experienced significant pain on the top of his feet, in the area where the leather and nylon were stitched together.  He eventually removed his insoles to relieve the pressure.  He added that he wore insoles for the remainder of his time in Vietnam, noting that on occasions his feet were still uncomfortable.

The Board finds that his lay statements concerning the type and extent of his experience with his boots in service are not just competent, but also credible and consistent with the circumstances, conditions and hardships of his service to have probative value and warrant conceding he had these type of problems alleged in service.  See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) discussing this lesser burden of proof for establishing a relevant injury in service when, as here, the injury is claimed to have been sustained in combat and is consistent with the circumstances, conditions, and hardships of the Veteran's service.  Consider, as well, that he is competent to report what occurred in service because his testimony regarding his firsthand knowledge of a factual matter is competent.  See Washington v. Nicholson, 19 Vet. App. 363 (2005).

The question then becomes whether the type of problems he experienced with his boots and feet in service are tantamount to concluding his pes planus was aggravated by those experiences in service beyond the condition's natural progression.  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153 ; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995).  Mere temporary or intermittent flare-ups of a pre-existing injury or disease during service are insufficient to be considered "aggravation in service", unless the underlying condition, itself, as contrasted with mere symptoms, has worsened.  See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); and Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity.  Townsend v. Derwinski, 1 Vet. App. 408 (1991); 38 C.F.R. § 3.306(a).  Evidence of the Veteran being asymptomatic on entry into service, even with an exacerbation of symptoms during service, does not constitute evidence of aggravation.  Green v. Derwinski, 1 Vet. App. 320, 323 (1991).  

If the disorder becomes worse during service and then improves due to treatment in service to the point that it was no more disabling than it was at entrance into service, the disorder is not presumed to have been aggravated by service.  Verdon v. Brown, 8 Vet. App. 529 (1996).  That is, the Verdon Court held that the presumption of aggravation does not attach even where the pre-existing disability has been medically or surgically treated during service and the usual effects of treatment have ameliorated disability so that it is no more disabling than it was at entry into service.  The word "aggravate" means "to make worse."  See Webster's II New College Dictionary (1999).  The Court has clarified, however, the worsening must be chronic, meaning permanent.

So merely because VA is essentially required to presume the Veteran wore uncomfortable boots during service as he is alleging, especially since it is said to have occurred in combat, does not in turn mean the Board also has to conclude his pes planus was permanently worsened as a consequence, especially given that he had pes planus even before that combat service and, indeed, even had complained of cramping in his arches when entering service.  In other words, a claim of combat injury, alone, does not obviate the need for him to still have supporting medical evidence confirming he has consequent disability, and in this particular instance this has to be evidence showing a permanent worsening of his pre-existing pes planus on account of his combat service.  Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999).  And, unfortunately, in this particular instance the most probative, meaning competent and credible, evidence is against the claim.

In reviewing his post-service history, there are no records reflecting complaints, diagnosis or findings related to any foot disability until 2008, so for some 38 years (nearly four decades) after his military service ended.  He has indicated that he received podiatric treatment during the 1970s, so in the interim, but those records are unavailable.  Furthermore, he submitted a September 2009 statement from Platte Valley Foot Clinic indicating he had sought medical records from this facility to show that he had received earlier treatment there.  The podiatrist indicated that medical records are destroyed after 10 years, so not maintained beyond that point.  

He explained that their computer system was installed in 1993 and that the Veteran was listed in their electronic records as having treatment prior to 1993.  However, this podiatrist was unable to pinpoint any earlier treatment, only that it was prior to 1993.

In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records.  The Federal Circuit Court went on to indicate in Buchanan, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  The Board therefore may consider the absence of any indication of a relevant medical complaint until relatively long after service as one factor, though not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence that demonstrated continuity of symptomatology and had failed to account for the lengthy time period for which there was no clinical documentation of the claimed disorder).

But having said that, the Board cannot simply summarily reject lay statements and testimony concerning this out of hand, rather, must provide reasons and bases for making such a negative inference.  See Kahana v. Shinseki, 24 Vet. App. 428, 433, 438 (2011).  And, in so doing, the Board must remain mindful that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc).

Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

Here, since there is no clinical evidence of complaints (e.g., relevant symptoms) or treatment for foot-related problems or issues dating back to the 1970s, the Veteran has reason or incentive to relate his continuing problems back to his military service, despite not having made any such allegation at any time prior - either during his service, even during the many intervening years that had ensued up to the filing of this claim.  As the VA compensation examiner pointed out, the Veteran filed for VA benefits in 1980 and as late as 2003, but never referred to pes planus or other foot-related issues as ongoing problems since his service.  Even more so, the file contains extensive private clinical records from his claim for benefits with the Social Security Administration (SSA) that date back to 1964, so to even before his service.  Yet, there are no complaints of foot problems until 2008.  This is still more evidence directly contradicting his reports of continuing foot problems since service.

A lay person is competent to provide testimony or statements relating to facts of events that the lay person observed or that is within the realm of his/her personal knowledge.  In weighing credibility, discounting of competent testimony or statements from a lay person may occur "in the light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  Factors for consideration therefore include a showing of interest, self-interest, bias, inconsistent statements, inconsistency with 

other evidence of record, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor.  See Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991).  See also Struck v. Brown, 9 Vet. App. 145 (1996) (discussing how contemporaneous medical findings may be given more probative weight than contrary evidence offered years later, long after the fact); Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); and Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later).  His earlier reported histories for treatment purposes are of more probative value than his more recent assertions and histories given for VA disability compensation purposes.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).

In regards to the medical opinions of record, the Veteran had a VA compensation examination in August 2009.  After considering the in-service and post-service medical histories, this evaluating physician concluded the Veteran's pes planus was not aggravated during or by his military service.  In explanation, this examiner noted the Veteran had entered service with pre-existing pes planus.  This examiner went on to point out that the separation information did not evidence foot problems.  And as there was no evidence of aggravation of the pre-existing pes planus while in service, and the lack of relevant complaints or treatment for so long after service, this VA compensation examiner determined it is less likely than not that the Veteran's military service aggravated his pes planus.


The record, however, also includes a September 2009 statement from Dr. S.J.B. of the Platte Valley Foot Clinic.  This doctor noted the Veteran had submitted his military records indicating he was treated for pes planus during his service.  But, to reiterate, there is no indication the Veteran was ever treated for his pes planus while in service, and in fact he expressly denied having experienced any relevant symptoms during his service when examined in anticipation of his separation from service.  So Dr. S.J.B.'s statement, from the very outset, is predicated on an inaccurate factual premise, which consequently undermines its probative value.  See Elkins v. Brown, 5 Vet. App. 474 (1993); Black v. Brown, 5 Vet. App. 177 (1993).  A medical opinion is only as good as credible as the history on which it is predicated.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based upon an inaccurate factual premise has no probative value.).  And while it is true that VA cannot discount the probative value of a medical opinion merely because it is based on a history recounted by the Veteran, it is permissible to do this when the Board determines this reported history is not credible.  See Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  See also Kowalski v. Nicholson, 19 Vet. App. 171 (2005) and Coburn v. Nicholson, 19 Vet. App. 427 (2006).  And, besides, here, Dr. S.J.B. indicated the Veteran had submitted records concerning his service, so presumably Dr. S.J.B.'s statement is not predicated merely on the Veteran's self-reported history, rather, on Dr. S.J.B.'s independent review of these records.  The fact remains, however, that these records do not show any treatment for pes planus in service, contrary to Dr. S.J.B.'s claim of this.

Dr. S.J.B. also noted the Veteran had received biomechanical orthotics from his practice in 1993.  He added that, according to the Veteran's medical history, he has had a 40-year history of foot problems - although his initial complaint to that office was instead for plantar fasciitis, which was treated with orthotics.  Dr. S.J.B. went on to conclude that the Veteran's recent medical condition of heel and arch pain is a direct result of his pes planus deformity that he received treatment for and experienced while on active duty in the Army.


The Board must account for evidence it finds persuasive or unpersuasive and provide reasons and bases for rejecting material evidence favorable to the claim.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).  After considering the evidence both for and against the claim, the Board finds the statements of the private physician supporting the claim less persuasive in light of the overall record than those against the claim.  The private podiatrist statements are equivocal at best.  Although this medical health care provider indicated the Veteran's current foot problems are related to the bilateral pes planus that was treated during service, he stops short of actually suggesting the Veteran's pes planus, which pre-existed his service, was aggravated during his service beyond its natural progression and led to his current bilateral foot problems.

And even assuming this podiatrist's statement was meant to be a positive nexus opinion, the Board as mentioned finds problem with this physician's statement of the facts in that he purportedly reviewed the Veterans' STRs and supposedly saw that the Veteran had received treatment for pes planus during his service, when, in fact, he did not.  There simply is no record of treatment for pes planus in service.  Nor has the Veteran identified or submitted any STRs to VA showing treatment for his feet or pes planus, specifically, during his service.  When it was observed during his military enlistment examination that he had pes planus, he admitted to having had cramping in his arches in times past, so to having experienced relevant symptoms like this even prior to his service.  At that time there is no indication that treatment was provided.  And while the Board has accepted his reports of problems with his boot and feet in service, on the basis of his lay testimony concerning this, there is no actual recorded history or indication of actual treatment for his pes planus at any time while in service.

Furthermore, it appears this commenting podiatrist blindly accepted the Veteran's report of a 40-year history of continuing foot problems, when, in fact, this also has not been shown, especially given the Veteran's earlier claims and treatment when he made no such mention of any foot-related problems or issues, irrespective of the particular diagnosis such as pes planus or plantar fasciitis.

Perhaps even more problematic, though, is the fact that this podiatrist's opinion does not include any supporting rationale.  He did not point to any clinical data or any other evidence supporting his conclusion.  Instead, his opinion is entirely conclusory and offers no medical guidance as to the basis of the opinion.  In Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008), the Court held that most of the probative value of a medical opinion comes from its underlying reasoning, not just from review of the claims file.  Id., at 304.  "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connected or rating context if it contains only data and conclusions."  Id., citing Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"); Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record."); see also Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)).  Thus, the opinion provided by this private doctor is of limited probative value in this case, even though he may have been intimately aware of the Veteran's foot problems and its supposed history.

In contrast, the VA compensation examiner's opinion is based on a review of the pertinent medical history, including the Veteran's statements, and supported by sound rationale.  The VA examiner outlined the relevant facts in his report, which he cited in support of his ultimate conclusion that the Veteran's current foot problems are unrelated to his military service.  This examiner's detailed explanation included specific mention of the fact that the record does not contain any reference to foot-related complaints or treatment during service.  Further, there are no documented complaints or treatment for foot disability until 2008, so even for many years after service, and not until when the Veteran filed claims for VA benefits.  This VA examiner therefore disassociated the Veteran's current foot problems from his military service, including in the way of aggravation during service of the 
pre-existing pes planus beyond its natural progression.

This VA examiner also readily acknowledged the Veteran's report of having experienced foot problems since service in Vietnam, so continuity of symptomatology since service.  The essence of 38 C.F.R. § 3.303(b) is continuous symptoms, not continuous treatment for the symptoms, and as mentioned the Veteran is competent to make this proclamation of having experienced continuous foot pain since his service.  But, again, the Board does not find his lay testimony concerning this also to be credible, so not ultimately probative.  And, indeed, the VA examiner, while conceding the Veteran had reported this long history of foot problems in the course of his evaluation, nonetheless outlined why the record does not support a history of continuing foot problems since service.  The VA examiner therefore acknowledged this reported history of foot pain dating back to service but, ultimately, considered other evidence in the file not supporting this notion as reason for disassociating the current foot problems from service.  Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's STRs to provide a negative opinion).  This VA examiner's reasons for concluding against the claim were based on other factors, not just unacceptance of the claimed symptoms since service, but the time period it took before these symptoms apparently manifested to warrant medical intervention.

Since this VA examiner's opinion was based on a review of the pertinent medical history and was supported by sound medical rationale, it provides compelling evidence against the Veteran's claim that his pes planus was aggravated during or by his service beyond the condition's natural progression.  See Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the Veteran's position).


There are just a few other final points also worth mentioning.  Congenital and developmental defects are not "diseases or injuries" within the meaning of applicable legislation for VA disability compensation purposes.  38 C.F.R. §§ 3.303(c), 4.9.  VA's General Counsel  has held, however, that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations.  VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306.  The Court indicated that support for this position could be found in VA's regulations, themselves, noting that sickle cell anemia, although a familial disease, was included for rating purposes in the Schedule for Rating Disabilities (Rating Schedule).

Also according to the VA General Counsel's opinion, although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability.  VAOPGCPREC 82-90.

Thus, to allow for proper legal analysis of a Veteran's claim as it pertains to the claimed disability, medical clarification may be necessary as to whether the Veteran's condition is a congenital or developmental "disease" or "defect." See id; Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009).  If the claimed disorder is a disease, an opinion may be required as to whether it was as likely as not aggravated by the Veteran's period of active service beyond its natural progression.  If the claimed disorder instead is a defect, an opinion may be required as to whether it was as likely as not subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect.

Here, for the reasons and bases discussed, the Board finds the statements of the private doctor and the Veteran's lay statements attributing his current foot problems to his military service are less probative than the VA compensation examiner's opinion disputing that there is any such correlation, causation or aggravation.  

And because the preponderance of the evidence is against this claim, there is no reasonable doubt to be resolved in the Veteran's favor, so this claim must be denied.  38 C.F.R. § 3.102.

IV.  Whether there is New and Material Evidence to Reopen the Claim of Entitlement to Service Connection for Bilateral Hearing Loss

The RO first considered and denied this claim in December 2003.  At the time, the evidence included the Veteran's STRs.  He had had a hearing evaluation in March1968 in anticipation of his enlistment into the military.  And his hearing was within normal limits at all frequencies tested; the audiogram revealed pure tone thresholds in his right ear at 1000, 2000, 3,000, and 4000 Hz of -10, 0, -5, and 5 decibels, respectively; and in his left ear the pure tone thresholds were -5, 0, 0, and 10, respectively.  When subsequently examined in March 1970 prior to his separation from service, evidently a hearing test was not performed, however, he specifically denied any hearing loss when recounting his relevant medical history.

The record also included an October 2003 VA examination report.  The pure tone thresholds in the right ear at 500, 1000, 2000, 3,000, and 4000 Hz were 10, 5, 15, 15, and 10, respectively, and in the left ear they were 5, 10, 15, 20, and 25, respectively.  The speech recognition scores were 98 percent in the right ear and 100 percent in the left ear.

When denying the claim in December 2003, the RO determined the available evidence did not support the conclusion that he had a ratable hearing loss disability as defined by VA regulation, meaning according to the threshold minimum requirements of 38 C.F.R. § 3.385.  the threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  But according to VA standards, impaired hearing must be at a certain level of severity to be considered an actual ratable disability.  Namely, according to VA regulation, hearing loss only will be considered to be a ratable disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  See 38 C.F.R. § 3.385.  And although a Veteran need not have had this level of hearing impairment while in service, he must presently or at some point since the filing of his claim to have a ratable disability.  Else, there is no present disability to relate or attribute to his military service.

The RO appropriately notified him of that December 2003 decision, including apprising him of his procedural and appellate rights in the event he elected to appeal, but he did not.  So that decision became final and binding on him based on the evidence then of record.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103.  The Board has considered the potential applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period.  Here, though, this regulation is inapplicable as no evidence pertaining to the Veteran's claim was received prior to the expiration of that earlier appeal period, that is, during the one-year aftermath of that December 2003 decision initially considering and denying the claim.  See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); and Muehl v. West, 13 Vet. App. 159, 161-62 (1999).

He filed his current petition to reopen this claim on March 9, 2009.

When a claim to reopen is presented, a two-step analysis is performed.  The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new and material."  See 38 U.S.C.A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998).  According to VA regulation, "new" means existing evidence not previously submitted to agency decision makers.  "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  See 38 C.F.R. § 3.156(a).

Second, if VA determines the evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring the duty to assist has been satisfied.  See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom.  Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000).  This second step becomes applicable only when the preceding step is satisfied.  See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999).

The RO's December 2003 decision therefore marks the starting point for determining whether there is new and material evidence to reopen this claim because that was the last final and binding denial of this claim.  Evans v. Brown, 9 Vet. App. 273 (1996) (indicating the evidence to be considered when making this new-and-material determination is that added to the record since the last final and binding disallowance of the claim, regardless of whether that denial was on the underlying merits or, instead, a prior petition to reopen the claim).

The additional evidence since submitted includes a February 2009 private audiology report listing diagnoses of bilateral hearing loss (and tinnitus).  The record also included an audiogram.  The pure tone thresholds in the right ear at 500, 1000, 2000, 3,000, and 4000 Hz were 20, 15, 20, 25, and 30, respectively; and in the left ear they were 20, 15, 15, 30, and 30, respectively.  Speech recognition scores were not provided.

Importantly, this private examiner indicated the Veteran has a hearing loss disability related to his military service.  The Court has held that submitting new and material evidence as to one element of service connection is sufficient to reopen the claim without also having to provide evidence with respect to other unestablished elements.  Shade v. Shinseki, 24 Vet. App. 110 (2010).


The Veteran has provided testimony regarding his training and combat experiences in service involving noise exposure to firearms and mortar fire, as well as his continuing hearing loss during the many years since.  And as already explained, he is competent even as laymen to make this proclamation of continuous symptoms like difficulty hearing since service.  Buchanan, supra.  And his lay testimony concerning this is presumed credible, albeit just for the limited purpose of determining whether his lay testimony is new and material evidence.  See Justus v. Principi, 3 Vet. App. 510 (1992).

Therefore, in light of the private medical records etiologically linking his hearing loss to his military service, and his personal statements regarding continuous hearing loss since service, this claim is reopened.  In Shade, the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id., at 118.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  In other words, the Court indicated that the post-VCAA version of 38 C.F.R. § 3.156(a) establishes a low threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim.  Rather, if there is newly submitted evidence of current disability that in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened.  This then triggers VA's duty to assist in providing the claimant with a VA examination.

The opposite is the situation here, although no less reason to reopen this claim.  Although he did not previously, the Veteran now has a medical nexus opinion etiologically linking his hearing loss to his military service.  The problem that remains with this claim, however, is that it still does not appear he has sufficient hearing loss in either ear to be considered an actual ratable disability according to the threshold minimum requirements of 38 C.F.R. § 3.385.  So, for all intents and purposes, he still has not established he has this claimed disability, even with the evidence supposedly linking this as-yet established disability to his military service.  Since, however, additional testing of his hearing on remand may show he now has sufficient hearing loss to be considered a ratable disability, there is still reason to reopen this claim in the meantime given this supporting medical nexus opinion inasmuch as the linkage to his service already will have been established if, on remand, it is shown he now has this claimed disability.  See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (holding that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim).

V.  Whether there also is New and Material Evidence to Reopen the Claim of Entitlement to Service Connection for the Right Knee Disability

The Veteran also is trying to establish his entitlement to service connection for a right knee disorder.  Since, however, this claim has been previously considered and denied in April 1981, and he did not appeal that earlier decision, the Board has to initially determine whether there is new and material evidence to reopen this claim because that prior decision is final and binding on him based on the medical and other evidence then of record.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103.

At the time of that April 1981 decision, the evidence included the Veteran's STRs showing that, in March 1969, he had received medical care for a bruised right knee.  Also during a March 1970 examination conducted prior to separation, he reported a history of a trick or locked knee.

In February 1981, a VA compensation examination was performed in response to his claim for service connection for residuals of that right knee injury.  His extremities were considered normal on examination, however, so the RO concluded there was no then-current right knee disability, so no then-present disability to relate or attribute to his injury to this knee in service.

The RO notified him of that initial decision denying this claim later in April 1981 and apprised him of his procedural and appellate rights, but he did not appeal.  Consequently, in the absence of an appeal, that initial April 1981 decision denying this claim is final and binding on him based on the evidence then of record.  See 38 U.S.C.A. § 7105(c); see also 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103.  So, to reopen this claim and warrant review of the prior disposition concerning it, there has to be new and material evidence.  See 38 U.S.C.A. § 5108.

Since that April 1981 decision, he has submitted written statements, as well as private and VA clinical and examination reports.

In regards to his written statements, he has merely continued to argue that he has a right knee disorder attributable to his military service.  But he made this same allegation before the RO initially considered and denied this claim in April 1981.  So, even when initially considering and denying this claim in April 1981, there was recognition and acknowledgment of his personal belief that he has a right knee disorder and that it is a result of his military service.  Thus, merely reiterating this allegation is not new evidence.  See Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence).  See also Reid v. Derwinski, 2 Vet. App. 312, 315 (1992).

There still has to be some competent and credible indication he now has a right knee disorder or at least has at some point since filing the petition to reopen this claim, to in turn suggest he has chronic disability as a consequence of that event in service and his complaints in service, even accepting they occurred.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability).  But see, too, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).

If there still is not this required evidence of a ratable right knee disability, the derivative or downstream question of whether there is a relationship or correlation between this claimed, but for all intents and purposes nonexistent, disability and the right knee problems reported in service is ultimately inconsequential and, therefore, irrelevant.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  Boldness and italics added for emphasis.

Hence, in trying to reopen this claim for a right knee disorder, there first necessarily needs to be some additional evidence since the RO's April 1981 decision establishing he has this claimed disability.  And, importantly, this determination is based on objective data, so not merely on his unsubstantiated lay opinion that he does.  

Medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but may instead, depending on the facts of the particular case, be demonstrated by competent and credible lay evidence under 38 U.S.C. § 1154(a).  See Davidson, supra.  However, the Court has held that lay assertions of medical causation generally cannot suffice to reopen a claim under 38 U.S.C.A. § 5108.  See Moray v. Brown, 5 Vet. App. 211, 214 (1993); Routen v. Brown, 10 Vet. App. 183, 186, (1997).  And while it is true that evidence submitted in an effort to reopen a claim is presumed credible, albeit just for the limited purpose of making this threshold preliminary determination of whether it is new and material (see Justus v. Principi, 3 Vet. App. 510, 513 (1992)), there still ultimately has to be an underlying right knee disability, and chronic one at that, to account for the Veteran's subjective lay complaints.  Else, there is no current disability to attribute to his military service.  
See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001) (indicating that mere pain, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted).

Even prior to initially considering and denying this claim in April 1981, the RO had the Veteran undergo a VA compensation examination in February 1981.  And that examination did not result in a pertinent diagnosis.  Indeed, arguments based on what amounts to the same evidence of record at the time of the previous final denial of the claim do not constitute the presentation of new and material evidence.  Untalan v. Nicholson, 20 Vet. App. 467 (2006).

Also since that April 1981 decision, private and VA treatment records have been added to the file, but none are material to the claim in terms of establishing a current right knee disorder and attributing it to his military service.  In fact, most of these additional records are not even remotely pertinent to this claim for a right knee disorder, rather, concern evaluation and treatment of other unrelated conditions.  Indeed, there is no evidence of evaluation or treatment for a right knee disorder, specifically.  So merely submitting additional medical records of this sort does nothing to address the more determinative issues of current disability and causation of this current disability in terms of any potential relationship or correlation with his military service.  See Cox v. Brown, 5 Vet. App. 95 (1993) and Morton v. Principi, 3 Vet. App. 508 (1992) (per curiam) (medical records describing Veteran's current condition are immaterial to the issue of service connection and are insufficient to reopen a claim for service connection based on new and material evidence).

There still is no evidence of a current right knee disorder that is etiologically linked to his right knee problems in service.  The RO's prior April 1981 final and binding denial of this claim already explicitly considered his STRs, including as they concerned any relevant symptoms he had experienced during his service.  Shade held that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim."  

There is not this required indication in this particular instance, however, since the Veteran already has received the assistance of a VA compensation examination in years past that proved unremarkable.  And, as explained, he is not entitled to another VA compensation examination unless and until there is new and material evidence to reopen this claim.  38 C.F.R. § 3.159(c)(4)(iii).

In sum, none of the additional evidence since the prior final and binding decision in April 1981 addresses the element of service connection that was missing in that prior denial of the claim - i.e., proof of a current, ratable, right knee disability.  Thus, there is no new and material evidence to reopen this claim for a right knee disorder, and the petition must be denied.  38 C.F.R. § 3.156.  Furthermore, in the absence of new and material evidence, the benefit-of-the-doubt doctrine does not apply.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).

VI.  Entitlement to an Initial Rating Higher than 30 Percent to the IHD prior to December 21, 2010, and to a Rating Higher than 60 Percent Since

In June 2011, the RO granted service connection for IHD and assigned a 30 percent evaluation retroactively effective as of July 6, 2009, and a higher 60 percent evaluation effective December 21, 2010.  The effective date of the initial 30 percent rating since has been moved back a bit to March 9, 2009.

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the effective date of the award.  And when this occurs, the rating must be "staged" to reflect this change in severity of the condition.  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (discussing the need to consider this possibility when there is an appeal of an initial rating assigned following the granting of service connection for the disability); and Hart v. Mansfield, 21 Vet. App. 505 (2007) (also employing this practice in claims that do not involve initial ratings but, rather, established ratings).


If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When reasonable doubt arises as to the degree of disability, this doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

DC 7005, which pertains to ratings of IHD, including coronary artery disease (CAD), provides that a 10 percent evaluation is assignable when the condition causes a workload of greater than 7 METs but not greater than 10 METs, which results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required.  A 30 percent evaluation is assignable when the condition causes a workload of greater than 5 METs but not greater than 7 METs, which results in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray.  A 60 percent evaluation is assignable when the condition causes more than one episode of acute congestive heart failure in the past year, or a workload of greater than 3 METs but not greater than 5 METs, which results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent.  And a 100 percent evaluation is assignable when the condition causes chronic congestive heart failure, or; a workload of 3 METs or less, resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent.  38 C.F.R. § 4.104 , DC 7005.

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

Therefore, according to these criteria, for the Veteran to prevail during the time period prior to December 2010, the evidence must either show disease causing more than one episode of acute congestive heart failure in the prior year, a workload of greater than 3 METs but not greater than 5 METs, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent.

Prior to December 21, 2010, there was no VA compensation examination conducted to determine the severity of his IHD.  The RO noted that at the time of his December 2002 initial complaints of chest problems, a maximum workload of 5.8 METs was reported.  However, that was during a time period well before his claim for benefits on account of this disability.  The claims file contains private clinical records showing that, in March 2008, he was being examined periodically for his cardiac status.  The diagnoses show that he was asymptomatic until the end of 2009.  He underwent cardiac catherization in January 2010, after reporting chest-related complaints.  Nuclear imaging report noted that Gated SPECT imaging revealed left ventricular ejection fraction of 64 percent and post stress ejection fraction of 70 percent.

The VA compensation examination was performed on December 21, 2010, and, as mentioned, is the effective date when his initial 30 percent rating increased to 60 percent.  During that evaluation the VA physician's assistant determined that, based on the Veteran's reports, his METs' level was greater than 3 but less than 5.  A left ventricular ejection fracture was found to be 65 percent.

In light of the fact that during the time period prior to December 2010 his manifestations led to cardiac catherization and the only VA examination that was conducted indicated his METs were estimated greater than 3 but less than 5, the Board must resolve all doubt in his favor and assign the higher 60 percent rating back to the date of receipt of this claim on March 9, 2009 (so not just as of the December 21, 2010, VA compensation examination).


But at all times since the filing of this claim, the evidence does not show that his IHD causes chronic congestive heart failure, a workload of 3 METs or less, syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent, so he is not entitled to a rating higher than 60 percent at any point since the filing of this claim.  At his VA compensation examination in July 2011, his METs were estimated to be greater than 3 but less than 5.

The Board also has considered whether an extra-schedular rating is warranted.  The question of an extra-schedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

The Court has held that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director of Compensation and Pension Service.  See Thun v. Peake, 22 Vet. App. 111 (2008).  The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the Rating Schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is adequate, and no referral is required.  If on the other hand the Rating Schedule criteria do not reasonably describe or contemplate the claimant's disability level and symptomatology, a determination must be made as to whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").  When the Rating Schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id.

Here, there is no disputing the Veteran is functionally limited or impaired as a result of his heart disability.  There equally is no questioning the fact that his service-connected disabilities render him unemployable.  But because of this, the RO has granted a TDIU, which itself acknowledges the affect and impact these service-connected disabilities have on his ability to work in a substantially gainful occupation.  Indeed, the combined effect of these disabilities is such that, together, they are so severe as to effectively preclude him from obtaining and maintaining substantially gainful employment versus just marginal employment, when also considering his level of education, prior work experience and training, etc.  38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19.

That said, the Court has recognized that "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) . . . and for purposes of a TDIU claim under 38 C.F.R. § 4.16."  Kellar v. Brown, 6 Vet. App. 157, 162 (1994).  The former requires marked interference with employment; whereas the latter requires evidence of unemployability.  Id.; see also Thun v. Peake, 22 Vet. App. 111,  ("[E]xtraschedular consideration [under § 3.321] may be warranted for disabilities that present a loss of earning capacity that is less severe than one where the Veteran is totally unemployable.")

Still, the medical and other evidence in the file fails to show anything so unique or unusual about the Veteran's disability and consequent functional and occupational impairment that would render application of the regular Rating Schedule criteria inadequate or impractical.  His primary symptoms are of chest pain, angina, and increased fatigue.  But these symptoms are specifically accounted for in the regular schedular rating criteria.  See, too, 38 C.F.R. § 4.1, indicating that, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired, especially in cases where the Veteran has a rating in the higher range of the rating spectrum).

Furthermore, there is no evidence of any other exceptional or unusual circumstances, such as frequent hospitalizations, otherwise suggesting he is not adequately compensated for this disability by the regular Rating Schedule.  As mentioned he underwent cardiac catherization in 2010, but his evaluation and treatment have been primarily, if not exclusively, on an outpatient basis, not as an inpatient, certainly not frequent inpatient.  So the Board is not obligated to refer this claim for extra-schedular consideration.  Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).

VII.  Whether he is Entitled to an Effective Date Earlier than March 9, 2009, for the Grant of Service Connection for his IHD

Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation (DIC) based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  If a claim for disability compensation (i.e., service connection) is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose.  38 C.F.R. § 3.400(b)(2).  Otherwise, the effective date can be no earlier than when the Veteran eventually filed the claim.


The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that, "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim."  In order for the Veteran to be awarded an effective date based on an earlier claim, he has to show clear and unmistakable error (CUE) in the prior denial of the claim.  Flash v. Brown, 8 Vet. App. 332, 340 (1995).  Moreover, there is no basis for a free-standing earlier effective date claim from matters addressed in a final and binding rating decision.  See Rudd v. Nicholson, 20 Vet. App. 296 (2006).

A review of the file shows that a VA Form 21-4138, Statement in Support of Claim, was received at the RO on March 9, 2009.  In pertinent part, the Veteran requested service connection for PTSD.  

Subsequently, on July 6, 2009, the RO also received claims for residuals of neck and head injuries and for pes planus.

In September 2009, the RO, in pertinent part, granted service connection for PTSD.  A 30 percent evaluation was assigned effective March 9, 2009, coinciding with the receipt of this claim on that date.

In November 2009, the RO received another VA Form 21-4138, on which the Veteran additionally requested service connection for a heart disability secondary to his PTSD.  See 38 C.F.R. § 3.310(a) and (b) and Allen v. Brown, 7 Vet. App. 439, 448 (1995), permitting service connection on this secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  Attached to the claim was an October 2009 statement of a private physician indicating the Veteran had had a stent placed in his coronary artery in December 2002.  This physician indicated the Veteran had a diagnosis of CAD.  This physician also noted there was research available indicating that PTSD can be a contributing factor to chronic diseases such as heart disease.


In February 2010, the Veteran amended his claim to include service connection for IHD secondary to Agent Orange exposure.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a), 3.309(e).

Pursuant to a Nehmer review, a June 2011 rating decision granted service connection for IHD.  Where compensation is awarded pursuant to a liberalizing law or a liberalizing VA issue, the effective date shall be fixed in accordance with facts found, but shall not be earlier than the effective date of the act or administrative issue.  38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a).  See also McCay v. Brown, 9 Vet. App. 183, 187 (1996) ("plain language of section 5110(g) prohibits a retroactive award prior to the effective date of the legislation"), aff'd, 106 F.3d 1577 (Fed. Cir. 1997). 

If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue.  38 C.F.R. § 3.114(a)(1).  However, if a claim is reviewed on the initiative of VA more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of administrative determination of entitlement.  38 C.F.R. § 3.114(a)(2).  Finally, if a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request.  38 C.F.R. § 3.114(a)(3).  In order to be eligible for a retroactive award, the claimant must show that all eligibility criteria for the benefits existed at the time of the effective date of the law or administrative issue and continuously thereafter.  38 C.F.R. § 3.114(a).

Ordinarily, under the above provisions for liberalizing laws, awards based on presumptive service connection established under the Agent Orange Act of 1991 can be made effective no earlier than the date VA issued the regulation authorizing the presumption.  Id.  IHD was included as a presumptive Agent Orange disease under 38 C.F.R. § 3.309(e).  But the legislation was then made retroactive by the United States Court of Appeals for the Federal Circuit.  See Liesegang v. Secretary of VA, 312 F.3d 1368 (Fed. Cir. 2002).

However, VA has been engaged for many years in litigation regarding compensation for Vietnam Veterans exposed to Agent Orange.  In May 1989, the United States District Court for the Northern District of California voided all denials of Agent Orange claims based on the regulations that became effective on September 25, 1985.  Nehmer v. United States Veterans Admin., 712 F. Supp. 1404, 1409 (N.D. Cal. 1989) (Nehmer I).  The district court later clarified its ruling, holding that the covered claims were those in which the disease or cause of death was later found to be service connected under valid VA regulations.  Nehmer v. United States Veterans Admin., 32 F. Supp. 2d 1175, 1183 (N.D. Cal. 1999) (Nehmer II).  In short, district court orders in the Nehmer litigation have created an exception to the generally applicable rules in 38 U.S.C.A. § 5110(g) and 38 C.F.R. § 3.114.

The Nehmer stipulations were later incorporated into a final regulation, 38 C.F.R. § 3.816, which became effective on September 24, 2003.  That regulation defines a "Nehmer class member" to include a Veteran who has or died from a covered herbicide disease.  38 C.F.R. § 3.816(b)(1)(i), (b)(2)(i).  The regulation provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a "Nehmer class member" has been granted compensation from a covered herbicide disease.  Either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989; or (2) the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989 and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease.  In these situations, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose.  38 C.F.R. § 3.816(c)(1), (c)(2).


A claim will be considered a claim for compensation for a particular covered herbicide disease if:  (i) The claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or (ii) VA issued a decision on the claim, between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the covered herbicide disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded.  38 C.F.R. § 3.816(c)(2)(i), (ii) . 

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 or the date entitlement arose, whichever is later.  38 C.F.R. § 3.816(c)(2) . However, if the requirements of paragraph (c)(1) or (c)(2) listed above are not met, the effective date of the award shall be determined in accordance with liberalizing law and general effective date provisions of 38 C.F.R. §§ 3.114 and 3.400.  See 38 C.F.R. § 3.816(c)(4).

38 C.F.R. § 3.816 provides some specific exceptions pertaining to Nehmer class members.  Among others, 38 C.F.R. § 3.816(f) provides for payment of benefits to survivors or estates of deceased beneficiaries.  The regulation states, "If a Nehmer class member entitled to retroactive benefits ... dies prior to receiving payment of any such benefits, VA shall pay such unpaid retroactive benefits to the first individual or entity listed below."  38 C.F.R. § 3.816(f)(1).  The section goes on to list eligible payees in order of priority, including "The class member's estate."  38 C.F.R. § 3.816(f)(1)(iv). Section 3.816 makes it clear that these provisions create an exception to "certain" of the otherwise applicable accrued benefits regulations.  Section 3.816 explains that "[t]he provisions of 38 U.S.C. 5121(c) and § 3.1000(c) requiring survivors to file claims for accrued benefits do not apply to payments under this section."


Here, the RO assigned a 30 percent rating initially effective from July 6, 2009, and a higher 60 percent rating beginning on December 21, 2010.  The RO noted that a claim for pes planus had been received on July 6, 2009.  Since the Veteran had submitted evidence (that had included clinical records showing a diagnosis of heart disease), in conjunction with the pes planus claim, that was the date of the claim.  The RO also initially considered but deferred the issue of his entitlement to a TDIU.

In July 2011, in response, he noted his disagreement with the effective date assigned for the grant of service connection for his heart disability.  

In August 2011, the RO determined his PTSD and heart disability rendered him unemployable and, therefore, entitled to a TDIU.  The RO assigned an effective of December 21, 2010, which is the date of a VA compensation examination.  The RO explained that that was the date he had met the schedular criteria for a TDIU, referring to 38 C.F.R. § 4.16(a).

In a subsequent September 2011 decision and SSOC, however, the RO awarded an earlier effective date of March 9, 2009, for the grant of service connection for the IHD.  The RO explained that that was date of the original claim for PTSD, which had resulted in the receipt of the additional evidence showing the presence of this heart disease.  In an intervening statement received in August 2011, he had disagreed with effective date assigned for his TDIU.

In his October 2011 substantive appeal (on VA Form 9), he alleged that he was entitled to an even earlier effective date, as well, for the grant of service connection for his IHD.  He argued that VA did not apply the statues and regulations, did not properly evaluate the evidence, and that he was not properly notified of his rights.  He did not indicate what even earlier effective date he believed was warranted for the grant of service connection for his IHD.


In cases involving direct service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service.  Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(b)(2)(i).

A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA.  38 U.S.C.A. § 5101(a).  The provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received.  And "date of receipt" means the date on which a claim, information or evidence was received by VA.  38 C.F.R. § 3.1(r).  While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "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).  See also Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000).  The benefit sought must be identified, but need not be specific.  See Stewart v. Brown, 10 Vet. App. 15, 18 (1997); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).

That said, while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant.  VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).

Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant or his duly authorized representative, may be considered an informal claim.  Such claim, however, must identify the benefit sought.  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 claimant, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155.

Under some circumstances, the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of an informal claim.  38 C.F.R. § 3.157(b)(1).  But the provisions of this regulation, and this subparagraph in particular, apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.

Turning now to the facts and circumstances of this particular case at hand.  A review of the Veteran's STRs does not show any complaints, findings or diagnoses regarding a heart disability.  His military service ended in April 1970, and he did not file a claim for heart disability within one year of his discharge.  Hence, the earliest possible effective date he may receive is when he eventually filed a claim.

A post-service treatment record dated December 18, 2002, shows he initially presented complaints of chest tightness.  A heart stress test was performed later that week.  The next moth heart catherization was performed, which revealed CAD.  Percutaneous transluminal coronary angioplasty (PTCA) stenting of the right coronary artery was performed.

While he was diagnosed with a heart disorder in 2002, by statue and regulation, the effective date of the grant of service connection, instead, is determined by when he first filed his claim.  See Ellington v. Nicholson, 22 Vet. App. 141 (2007) (In the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, a document providing medical information in and of itself is not an informal claim for VA benefits).

The record reflects that an application for VA compensation benefits for a heart disorder was received on November 23, 2009, but the RO determined an informal claim had been earlier received on March 9, 2009, the date the Veteran had applied for PTSD benefits.

Under 38 C.F.R. § 3.155(a), the Veteran or a representative of the Veteran can file an informal claim by communicating an intent to apply for one or more VA benefits.  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 claimant, it will be considered filed as of the date of receipt of the informal claim.

But prior to March 9, 2009, there had been no informal or formal claim for VA compensation based on service connection for heart disease or PTSD.  And because there had not been any prior claim, certainly not for IHD, the provisions of 38 C.F.R. § 3.157 do not assist the Veteran in his quest for an earlier effective date for the eventual grant of service connection.

To reiterate, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed with VA.  See Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).  Further concerning this, VA tries to keep the general public informed about the various types of benefits, but the vast array of benefits makes it literally impossible for VA to inform each and every Veteran or person or beneficiary seeking benefits on the basis of the Veteran's military service of every possible or potential benefit for which he or she may be entitled.  To the extent not mandated by the VCAA, VA does not have a duty to provide Veterans or other appellants with personal notice of their eligibility for specific types of benefits.  Hill v. Derwinski, 2 Vet. App. 451 (1991).

For these reasons and bases, there are no grounds for assigning an effective date earlier than March 9, 2009, for the grant of service connection for the IHD.


VIII.  Whether the Veteran is Entitled to an Effective Date Earlier than March 9, 2009, for the Grant of his TDIU

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is inferred in an increased-rating claim where the Veteran alleges the disability for which he is requesting a higher rating renders him unemployable.  The procedural history of this case is similar to that in another precedent decision by the Court.  In Mayhue v. Shinseki, 24 Vet. App. 273 (2011). the Court found that because the claim for a TDIU was received by VA within one year of the grant of service connection based on an initial application for benefits, the TDIU claim "was part of [the Veteran's] initial application for benefits ..., not a part of a new claim for increased compensation."  In Mayhue, the Court determined the Board had failed to apply 38 C.F.R. § 3.156(b) when it had treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his posttraumatic stress disorder (PTSD).  Citing Rice, the Court reasoned that a request for a TDIU is not a separate claim for benefits, rather, an attempt to obtain an appropriate rating for a disability.  Thus, the Court explained, the Board should have considered evidence of unemployability as far back as the date of the underlying initial claim.

In a claim for a higher disability rating (i.e., increased compensation), unless specifically provided otherwise, the effective date of an award based on a claim for increase 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.A. § 5110(a); 38 C.F.R. § 3.400.

A TDIU claim is also a claim for increased compensation and, therefore, the effective date rules for increased compensation claims apply to a TDIU claim.  Hurd v. West, 13 Vet. App. 449 (2000).


The pertinent criteria for the effective date of an award for an increase in compensation are found in 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. §§ 3.400(o)(1) and (o)(2).  According to this statute and regulation, an effective date for a claim for increase may be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1) and (2).  See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. May 20, 2010) (explaining the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans with a 
one-year grace period for filing a claim following an increase in the severity of a service-connected disability).

Thus, according to Harper v. Brown, 10 Vet. App. 125, 126 (1997), three possible effective dates may be assigned depending on the facts of the particular case:

(1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1));

(2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or

(3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

So determining the appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred.  38 C.F.R. §§ 3.155, 3.400(o)(2).


In this context, the Board reiterates that the provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received.  And "date of receipt" means the date on which a claim, information or evidence was received by VA.  38 C.F.R. § 3.1(r).  While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "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).  See also Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000).  The benefit sought must be identified, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), but need not be specific, see Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  That said, while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant.  VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).

Additionally, under 38 C.F.R. § 3.155(a), the Veteran or a representative of the Veteran can file an informal claim by communicating an intent to apply for one or more VA benefits.  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 claimant, it will be considered filed as of the date of receipt of the informal claim.

Also, according to 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA or uniformed services hospital will be accepted as an informal claim for increased benefits.  The date on the VA outpatient or hospital examination will be accepted as the date of informal claim.  38 C.F.R. § 3.157(b).


The Court has held that 38 U.S.C.A. § 5110(b)(2) specifically links any effective date earlier than the date of application to:  (1) evidence that an increase in disability had occurred; and (2) to the receipt of an application within one year after that increase in disability.  The application referred to must be an application on the basis of which the increased rating was awarded, because there would be no reason to adjudicate the question of the effective date prior to the award of a rating increase, just as there would be no reason to assign a disability rating on a disability compensation claim until service connection had been awarded.  38 U.S.C.A. § 5110(b)(2) allows a claimant to be awarded an effective date up to one year prior to the filing of an application for an increase, if an increase to the next disability level is ascertainable, and if a claim is received within one year thereafter.  VA must review all the evidence of record, not just evidence not previously considered.  The Court has noted that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where the increase precedes the claim for increase, provided also that the claim for increase is received within one year after the increase.  The Court further stated that the phrase "otherwise, the effective date shall be the date of receipt of the claim" provides the applicable effective date when a factually-ascertainable increase occurred more than one year prior to receipt of the claim for increase.  Hazan v. Gober, 10 Vet. App. 511 (1997).

Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340.  Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements.  If there is only one service-connected disability, this disability must be rated at 60 percent or more; if there are two or more disabilities, at least one must be rated at 40 percent or more with sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).


In determining whether a Veteran is entitled to a TDIU, neither his 
non-service-connected disabilities nor his advancing age may be considered.  38 C.F.R. § 3.341(a); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992).  The critical inquiry instead is "whether [his] service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  See also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993).

While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides."  Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income...."

In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment."  And in this context, the Court noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975):

It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity.  The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits.  The test is whether a particular job is realistically within the physical and mental capabilities of the claimant.


Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment."  38 C.F.R. § 4.16(a).  See, too, Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991).  That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same.  See 38 C.F.R. § 4.18.  Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  38 C.F.R. § 4.16(a).  Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold.  Id.  Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop.  Id.

Requiring a Veteran to prove that he is 100 percent, i.e., totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment.  The use of the word "substantially" suggests an intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility.  Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).

That said, to receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Moreover, the degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is indeed incapable of performing the physical and mental acts required by employment, and is not based solely on whether he is unemployed or has difficulty obtaining employment.  See Van Hoose v. Brown, 4 Vet. App. 361 (1993).  Rather, the record must demonstrate some factor that takes his situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment.  See, too, 38 C.F.R. §§ 4.1, 4.15 (2011).  Indeed, according to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.

Turning back now to the facts and procedural history of this particular case.  The Board has determined that the higher 60 percent rating is warranted for the Veteran's IHD from an earlier effective date, namely, March 9, 2009, rather than just as of December 21, 2010.  The RO determined that the date of his claim for IHD is the same as the date of his claim for PTSD, so which is also March 9, 2009.  In light of this, he met the minimum schedular requirements of 38 C.F.R. § 4.16(a) for a TDIU as of March 9, 2009.  He was service connected for IHD (which the Board has determined in this decision was 60-percent disabling even then, meaning even as of March 9, 2009), also for PTSD, rated as 30-percent disabling as of March 9, 2009, but higher, 50-percent disabling, as of July 28, 2011, and for tinnitus, rated as 10-percent disabling since March 9, 2009.  His combined rating as of March 9, 2009, therefore, was 80 percent.  38 C.F.R. § 4.25.  Accordingly, he met the minimum schedular rating criteria for a TDIU as of March 9, 2009.

And in determining he is entitled to an earlier effective date for this TDIU, meaning earlier than the RO determined in its August 2011 decision, he resultantly is entitled to the additional compensation back to the receipt of this TDII claim on March 9, 2009 (rather than just as of his December 21, 2010 VA compensation examination).  But only to this extent is this claim being granted.

Prior to March 9, 2009, he did not meet the schedular rating criteria for a TDIU listed at 38 C.F.R. § 4.16(a), nor did the medical and other evidence indicate he was unemployable solely due to service-connected disabilities as to, in turn, suggest entitlement to a TDIU on an alternative extra-schedular basis under the special provisions of § 4.16(b).  When filing his claim on March 9, 2009, he did not specifically raise the argument of unemployability.  Rather, this issue was later raised by the RO based on the evidence of record.  Certainly then, prior to March 9, 2009, he did not mention any arguments of unemployability on account of service-connected disability or disabilities, ergo, no prior claim for a TDIU.

Consequently the Board finds that the earliest possible effective date for the eventual grant of this TDIU benefit is March 9, 2009, the date of receipt of his underlying claim for PTSD.


ORDER

The claim for service connection for pes planus is denied.

But having submitted new and material evidence, the  claim of entitlement to service connection for bilateral hearing loss is reopened; to this extent only the appeal of this claim is granted, subject to the further development of this claim on remand.

In the absence of new and material evidence, however, the petition to reopen the claim for service connection for a right knee disability is denied.

The higher 60 percent rating for the IHD is granted from an earlier effective date - specifically, from March 9, 2009 rather than just as of December 21, 2010 - subject to the statutes and regulations governing the payment of VA compensation.  However, to the extent the Veteran also is claiming entitlement to an even higher rating, meaning higher than 60 percent, his appeal is denied.

An effective date earlier than March 9, 2009, for the grant of service connection for the IHD is denied.

But an earlier effective date of March 9, 2009, is granted for his TDIU, subject to the statutes and regulations governing the payment of VA compensation.



REMAND

Although the Board sincerely regrets the additional delay that inevitably will result from this remand, it is necessary to ensure there is a complete record upon which to decide the Veteran's remaining claims so he is afforded every possible consideration. 

He attributes his bilateral hearing loss to his military service and, in particular, to being repeatedly exposed to excessively loud noise while in service.  As already alluded to, in 2009 a private audiologist gave an opinion that the Veteran has bilateral hearing loss as a result of his military service.  The record did not provide any then current audiological findings, however.  As such, the Board is unable to determine the extent of this hearing loss in the relevant frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz, to, in turn, determine whether the Veteran now has sufficient hearing loss to be considered an actual ratable disability by VA standards.  See 38 C.F.R. § 3.385, indicating that impaired hearing only will be considered to be a ratable disability for VA compensation purposes when the auditory threshold in any of these frequencies is 40 decibels or greater; or when the auditory threshold for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  This is irrespective of the additional determination that also has to be made regarding whether any current hearing loss is the result of the noise exposure in service or instead, other unrelated factors.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

Additionally, in his March 2009 stressor statement the Veteran reported that during his military service he sustained various injuries to his head, neck, and knees.  In basic training, he alleges that he sustained a neck injury when a drill instructor stood on his helmet that caused severe pain in his neck.  He also stated that, while stationed in Vietnam, a barber put him in a headlock and twisted his head, causing further neck pain.  He also claims that he ran onto a tree stump, flipped over, and again injured his neck as well as his knees and back.

He is competent to report sustaining these injuries as well as to experiencing consequent pain, especially in light of the fact that he reports that some of these injuries occurred during combat.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  His lay testimony concerning this is potentially competent to support the presence of these claimed conditions, both during his service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records (STRs, etc.).  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  But his lay testimony concerning this also will have to be determined credible, so not just competent, to ultimately have probative value.  See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).  And, indeed, the Board must make an express credibility finding regarding this lay evidence when eventually deciding these claims.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007).  See, too, Kahana v. Shinseki, 24 Vet. App. 428, 433, 438 (2011), (rejecting broad-sweeping, categorical, rejections of lay evidence and testimony without discussing the underlying reasons and bases).

In reviewing the post-service medical records, the private audiologist mentioned has indicated the Veteran has a hearing loss disability related to his military service.  In regards to his neck disability, the Veteran was involved an automobile accident in January 1997, so since service, and has complained of neck pain since that intercurrent injury.  It therefore is unclear whether any current disability affecting his neck or cervical spine is the result of the injuries he sustained in that automobile accident or, instead, any prior trauma during his military service.  As for his claimed head and left knee disabilities, there are no clinical references to either.


With the exception of his claim for bilateral hearing loss, he has not been provided a VA compensation examination for a medical nexus opinion concerning the etiology of these claimed conditions, including especially in terms of whether they are related or attributable to his military service as he is alleging.  And although he was previously examined concerning his hearing loss claim, the VA examiner determined the Veteran did not have sufficient hearing loss at the time of that earlier evaluation to constitute a ratable disability for VA compensation purposes.  The supporting statement since submitted by the private audiologist, however, suggest the circumstances may since have changed such that the Veteran now possibly meets the threshold minimum requirements of 38 C.F.R. § 3.385 insofar as now perhaps having sufficient hearing loss to satisfy the criteria of this regulation and, in turn, be considered a ratable disability.

Pursuant to VA's duty to assist him in fully developing the evidence concerning these claims, VA will provide a medical examination for a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claims.  38 C.F.R. § 3.159(c)(4)(i).  A medical examination or medical opinion may be deemed necessary where the record contains competent medical evidence of a currently diagnosed disability, establishes the Veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury or disease in service.  See Id.  The record before VA need only (1) contain evidence that the Veteran has persistent or recurrent symptoms of current disability and (2) indicate those symptoms may be associated with his active military service.  Duenas v. Principi, 18 Vet. App. 512 (2004).  See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (indicating that, when determining whether a VA examination and opinion are required under 38 U.S.C.A. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a service-connected disability).


His reports of continuous symptoms since service can satisfy the requirement for evidence that the claimed disabilities may be related to his service.  So VA compensation examinations and opinions are needed to assist in deciding these remaining claims.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); and 38 C.F.R. § 3.159(c)(4).

Accordingly, these remaining claims are REMANDED for the following additional development and consideration:

1.  Ask the Veteran whether he has received any additional evaluation or treatment for these remaining disabilities at issue.  If he has, and the records are not already on file, obtain them.  If possible, obtain the clinical records.  If the records identified are not in the custody of a Federal department or agency, then the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(1), whereas subpart (c)(2) controls if they are.  He also must be appropriately notified if unable to obtain any identified records.  38 C.F.R. § 3.159(e)(1).

2.  Upon receipt of all additional records, schedule appropriate VA compensation examinations for:

(i) a medical opinion concerning whether the Veteran has sufficient hearing loss in either ear, or both, to satisfy the threshold minimum requirements of 38 C.F.R. § 3.385 to be considered an actual ratable disability by VA standards. 

(ii)  If it is determined he has sufficient hearing loss to meet the requirements of this VA regulation, then an opinion is also needed concerning the etiology of this current hearing loss disability, but especially in terms of the likelihood (very likely, as likely as not, or unlikely) it is related or attributable to his military service, and particularly to acoustic trauma from repeated exposure to excessively loud noise that he cites as the source or cause of his present-day hearing loss.

(iii) medical opinions are additionally needed concerning whether he has disabilities currently involving his head, neck or cervical spine, and/or left knee.

(iv) if confirmed that he does, then medical opinions also are needed concerning the likelihood (very likely, as likely as not, or unlikely) these current disabilities are attributable to his active military service, and in particular to type of trauma he claims to have sustained to these areas during his military service.

The term "as likely as not" means at least 50 percent probability.  It does not, however, mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion such as diagnosis or etiology is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.

The examiners should obtain a complete history from the Veteran regarding his claimed disabilities and should remain mindful that, in Dalton v. Nicholson, 21 Vet. App. 23 (2007), the Court found that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied exclusively on the absence of evidence in the Veteran's STRs to provide a negative opinion.

All diagnostic testing and evaluation needed to make these important determinations should be performed.

It is imperative the examiners review the claims file, including a complete copy of this remand, for the pertinent medical and other history.

The examiners must discuss the rationale of their opinions, if necessary citing to specific evidence in the file.

If at all possible, each examiner is asked and encouraged to try and provide some definitive comment on the determinative issues of diagnosis and etiology, rather than merely stating he or she cannot provide these opinions without resorting to mere speculation.  If, however, this is the examiner's only recourse (unable to provide these requested opinions without resorting to mere speculation), then he or she needs to discuss or explain why these requested opinions cannot be provided so that it is certain no additional comment is possible based on the available evidence or evidence that is obtainable.

*The Veteran is hereby advised that his failure to report for these scheduled VA examinations, without good cause, may have detrimental consequences on these pending claims.  38 C.F.R. § 3.655.


3.  Then readjudicate these remaining claims in light of all additional evidence.  If these claims are not granted to the Veteran's satisfaction, send him and his representative an SSOC and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims.

The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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. 2012).




______________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs