Citation Nr: 1300335 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 94-05 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an earlier effective date than February 11, 2005, for a 50 percent rating for anxiety disorder. 2. Entitlement to an earlier effective date than February 11, 2005, for a grant of a total disability rating based on individual unemployability (TDIU). 3. Entitlement to a disability rating greater than 50 percent for a skin disability. REPRESENTATION Appellant represented by: Sean Ravin, Attorney ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from July 1968 to July 1970. This case has a long and complicated procedural history. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1993 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, in which the RO denied the Veteran's claim for a disability rating greater than 50 percent for a skin disability (which was characterized as cystic acne, atrophic striae of groin, neurodermatitis of scrotum with psychophysiologic dermatological disorder). The Board remanded this claim to the RO for additional development on numerous occasions, including in December 1997, May 2003, and in May 2004. This matter also is on appeal from a May 2005 rating decision in which the RO granted, in pertinent part, the Veteran's claims of entitlement to a TDIU effective February 11, 2005, and to a disability rating greater than 10 percent for service-connected anxiety disorder (which was characterized as anxiety disorder, not otherwise specified, with mixed personality disorders), assigning a 50 percent rating effective February 11, 2005. The Veteran disagreed with this decision in July 2005, seeking an earlier effective date than February 11, 2005, for the grant of a TDIU and for the 50 percent rating assigned for his service-connected anxiety disorder ("earlier effective date claims"). In January 2006, the Board denied the Veteran's increased rating claim for a skin disability and remanded his earlier effective date claims to the RO for additional development. Both the Veteran, through his attorney, and VA's Office of General Counsel filed a Joint Motion for Remand (Joint Motion) with the United States Court of Appeals for Veterans Claims (Court) seeking a Court remand of the Board's January 2006 denial of his increased rating claim for a skin disability. In August 2007, the Court vacated and remanded the Board's January 2006 denial of the Veteran's increased rating claim for a skin disability. Pursuant to the Court's August 2007 Order granting the Joint Motion, the Board remanded all of the Veteran's currently appealed claims to the RO for additional development in January 2009. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). Unfortunately, as is explained below in greater detail, the issue of entitlement to a disability rating greater than 50 percent for a skin disability is addressed in the REMAND portion of the decision below and is REMANDED again to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The Veteran's original claim of entitlement to a TDIU was included in a letter from a private physician dated on July 11, 1996, and date-stamped as received by the RO on August 27, 1996; information obtained from the Veteran's employer in October 1996 showed that he still was employed. 2. In a letter dated on March 11, 1997, and date-stamped as received by the RO on April 8, 1997, the U.S. Office of Personnel Management (OPM) approved the Veteran's disability retirement from Federal service; this letter included the handwritten notation, "Entitlement to individual unemployability pending from VA." 3. In a rating decision dated on April 7, 1997, and issued to the Veteran and his service representative that same day, the RO denied the Veteran's claim of entitlement to a TDIU. 4. In a rating decision dated on December 12, 2001, and issued to the Veteran and his service representative on January 10, 2002, the RO granted service connection for anxiety disorder (which was characterized as a psychiatric disorder) and assigned a 10 percent rating effective November 7, 1996; although the Veteran timely disagreed with this decision, no appeal was perfected and it became final. 5. The competent evidence shows that, on VA examination on February 11, 2005, the Veteran's service-connected anxiety disorder was manifested by, at worst, occupational and social impairment with reduced reliability and productivity; this is the earliest factually ascertainable date when his service-connected anxiety disorder worsened. 6. In a rating decision dated on May 20, 2005, and issued to the Veteran on June 1, 2005, the AMC granted, in pertinent part, the Veteran's claims of entitlement to a TDIU effective February 11, 2005, and to a disability rating greater than 10 percent for anxiety disorder, assigning a 50 percent rating effective February 11, 2005. 7. In a letter dated on July 12, 2005, and date-stamped as received by the Board on July 18, 2005, the Veteran disagreed with the effective date of February 11, 2005, for the grant of a TDIU and for a 50 percent rating for anxiety disorder and requested an earlier effective date. 8. Service connection is in effect for a skin disability, evaluated as 50 percent disabling effective February 25, 1976, and for anxiety disorder, evaluated as 10 percent disabling effective November 7, 1996, and as 50 percent disabling effective February 11, 2005; the Veteran's combined disability evaluation for compensation was 50 percent effective February 25, 1976, 60 percent effective November 7, 1996, and 80 percent effective February 11, 2005. 9. The Veteran did not meet the schedular criteria for a TDIU prior to February 11, 2005; this is the earliest factually ascertainable date that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The December 12, 2001, rating decision, which granted service connection for anxiety disorder and assigned a 10 percent rating effective November 7, 1996, is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. The criteria for assignment of an earlier effective date than February 25, 2005, for a 50 percent rating for anxiety disorder have not been met. 38 U.S.C.A. §§ 5101(a), 5110, 5111 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.4(b)(1), 3.31, 3.105(a), 3.151(a), 3.400 (2012). 3. The criteria for assignment of an earlier effective date than February 25, 2005, for a grant of a TDIU have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. The Veteran's earlier effective date claims for a TDIU and for a 50 percent rating for anxiety disorder are "downstream" elements of the RO's grant of a TDIU and a 50 percent rating for anxiety disorder in the currently appealed rating decision. For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection. See VAOPGCPREC 8-2003 (Dec. 22, 2003). Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d. 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In May 2004, VA notified the Veteran of the information and evidence needed to substantiate and complete his claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. This letter also noted other types of evidence the Veteran could submit in support of his claims. The Veteran further was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim was provided in May 2008 and in February 2012, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As will be explained below in greater detail, the evidence does not support assigning an effective date earlier than February 25, 2011, for a TDIU or for a 50 percent rating for anxiety disorder. Thus, any failure by the RO to provide notice as to the disability rating under the VCAA cannot be considered prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the timing of the notice, the Board points out that the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a Veteran before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, notice as to what is required to substantiate the Veteran's claims was issued in May 2004 prior to the currently appealed rating decision issued in June 2005; thus, this notice was timely. Further, because the Veteran was fully informed of the evidence needed to substantiate his claims, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he declined to do so. It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran's complete Social Security Administration (SSA) records also have been obtained and associated with his voluminous claims file. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). There is no duty to provide an examination or a medical opinion in this case because such evidence would not be relevant to the earlier effective date claims on appeal. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Earlier Effective Date Claims The Veteran contends that he is entitled to an earlier effective date than February 25, 2011, for a grant of a TDIU and for a 50 percent rating for his service-connected anxiety disorder. He specifically contends that his service-connected disabilities have interfered with his employability since he took disability retirement from Federal service in March 1997, entitling him to an effective date at least as of that date for a TDIU. He also specifically contends that, because he has sought VA disability compensation since October 1991, he is entitled to an effective date of October 21, 1991, for a TDIU and for a 50 percent rating for his service-connected anxiety disorder. Law and Regulations In general, except as otherwise provided, the effective date of an evaluation an award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. A "claim" is 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); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, the RO will forward an application form to the claimant for execution. If the RO receives a complete application from the claimant within one year from the date it was sent, the RO will consider it filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2011). A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or VA issue, if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157. Once a formal claim for compensation has been allowed, receipt of a report of examination by VA or evidence from a private physician will be accepted as an informal claim for benefits. In the case of examination by VA, the date of examination will be accepted as the date of receipt of a claim. The provisions of the preceding sentence 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. In the case of evidence from a private physician, the date of receipt of such evidence by VA will be accepted as the date of the claim. Id. For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date; otherwise, the effective date is the date of receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(2). See Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). In VAOPGCPREC 12-98, VA's General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred. VA's General Counsel said this section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. With respect to the Veteran's service-connected anxiety disorder, a 10 percent rating is assigned under DC 9413 for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress or for symptoms controlled by continuous medication. A 50 percent rating is assigned under DC 9413 for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130, DC 9413 (2012). A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating 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, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The term unemployability, as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In determining whether a Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether a Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012). Analysis The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to an earlier effective date than February 25, 2011, for a 50 percent rating for service-connected anxiety disorder. The Veteran contends that he is entitled to an effective date of October 21, 1991, for a 50 percent rating for his service-connected anxiety disorder because he has prosecuted a claim of service connection for this disability continuously since that date. The Board disagrees, noting that it specifically advised the Veteran in its January 2006 decision that, since he had not perfected a timely appeal with respect to a higher initial rating claim for anxiety disorder, this issue was no longer in appellate status. See Board decision dated January 9, 2006, at pp. 2. In that decision, the Board noted that it previously had remanded a higher initial rating claim for anxiety disorder in May 2004 for the issuance of a statement of the case (SOC) by the RO. Id.; see also Manlincon v. West, 12 Vet. App. 238, 240-241 (1999) (finding that where claimant files notice of disagreement and the RO has not issued an SOC, the issue must be remanded to the RO for an SOC). The Board also noted in its January 2006 decision that a supplemental statement of the case had been promulgated in May 2005 on the issue of entitlement to a higher initial rating claim for anxiety disorder but the Veteran had not perfected a timely appeal on this claim. Given the foregoing, the Board finds that the December 2001 rating decision, which granted service connection for an anxiety disorder and assigned an initial 10 percent rating effective November 7, 1996, is final. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.302, 20.1103 (2012). Because the December 2001 rating decision is final, and despite the Veteran's frequent lay assertions to the contrary, the Board also finds that he has not prosecuted a claim of service connection for an anxiety disorder continuously since October 21, 1991, and any argument to that effect as the basis for his currently appealed earlier effective date claim for a 50 percent rating for anxiety disorder is meritless. The Board acknowledges that the Court's August 2007 Order vacated the January 9, 2006, decision denying an increased rating for a skin disability. Although the Board must conduct a de novo review of the Veteran's appeal in light of the Court's August 2007 Order, the fact remains that the Veteran did not perfect a timely appeal with respect to a higher initial rating claim for anxiety disorder. In other words, the Veteran has not prosecuted a claim of service connection for anxiety disorder continuously since October 1991 (as discussed above). To the extent that the Veteran is attempting to disturb the finality of the December 2001 rating decision, which granted service connection for anxiety disorder and assigned an initial 10 percent rating effective November 7, 1996, by filing an earlier effective date claim for a 50 percent rating for anxiety disorder, this claim is dismissed. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (barring appellants from seeking to disturb finality of prior rating decision by filing freestanding earlier effective date claim). The competent evidence shows that, at least prior to February 11, 2005, the Veteran's service-connected anxiety disorder was manifested by, at worst, occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress. The evidence does not suggest that, prior to this date, the Veteran's service-connected anxiety disorder was manifested by occupational and social impairment with reduced reliability and productivity such that an effective date earlier than February 11, 2005, is warranted for a 50 percent rating under DC 9413. See 38 C.F.R. § 4.130, DC 9413 (2012). The Board acknowledges that the Veteran took disability retirement from Federal service in March 1997. He has asserted repeatedly that he was forced to retire from Federal service because of worsening symptomatology due to his service-connected anxiety disorder. The competent evidence does not support the Veteran's assertions regarding a worsening of his service-connected anxiety disorder, at least prior to February 11, 2005, however. For example, a private psychiatric reported dated in July 2004 and received by the RO in August 2004 from Dr. M.P.A. noted she had been treating the Veteran since 2000 for complaints of "severe depression, anxiety, anhedonia, feelings of rejection, insecurity, excessive preoccupation with his physical problems and somatic complain[t]s of generalized pruritus, fatigue, decreased energy, irritability, dizziness, and general malaise. Mostly he was hopeless and helpless, feeling his life without meaning." The Veteran also had marital problems which led to the end of his marriage "along with financial problem[s] [which] were paramount." The Veteran's responses to treatment was affected by mood swings with crying spells, somatic complaints, decreased concentration, pressured speech, and increased verbal productivity. The Veteran's medical retirement in 1997 was noted. He had lived with his mother since 1999 and "avoids personal interaction with friends and people and feels uncomfortable because of his poor social skills." He only interacted with his family members. He was unable to concentrate when trying to read. He only could perform simple tasks "during his mood swings" and he performed "other simple errands by himself. Overall he keeps himself isolated, or sometimes he walks around the...house about 30 minutes." He required minimal supervision and took good care of his personal hygiene. Mental status examination of the Veteran in May 2004 (which was reported in the July 2004 report from Dr. M.P.A.) showed he was "well groomed with good manners, polite with good eye contact," paramount psychomotor retardation "and often with watery eyes," a preoccupation with depressive feelings, anxiety, and helplessness, fluent speech in a low tone that was often not spontaneous, coherent and relevant thought process with evidence of any disorders or perceptual changes, "logical and often scanty but goal directed" thoughts, feelings of worthlessness and helplessness, obsessive thinking "with excessive preoccupations about his multiple medical complications and with the outcome of his illness," paramount "anticipatory anxiety and somatic" complaints, no suicidal or homicidal ideation or plans, full orientation, no problems with immediate and remote memory but problems with recent memory, and good judgment and insight. The Veteran's Global Assessment of Functioning (GAF) score in the previous year was 50, indicating serious symptoms or any serious impairment in social, occupational, or school functioning. The Veteran's current GAF score was 51 to 60, indicating moderate symptoms or moderate difficulty in social, occupational, or school functioning. The Axis I diagnoses included recurrent major depression and obsessive compulsive personality. It was noted on Axis IV that the Veteran had "work related problems that led to [his] retirement." On VA examination on February 11, 2005, the Veteran's complaints included "mostly symptoms of anxiety, restlessness, preoccupation and others, in which he becomes depressed and cryful [sic]." The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records, in detail. She noted the Veteran's past psychiatric treatment and diagnoses, including a "psychophysiological disorder or psychological factors affecting a physical condition" in 1991 and a diagnosis of anxiety disorder in 1998 which was related to the Veteran's service-connected skin disability. She also noted that the Veteran's only psychiatric hospital admission was in 1991 when he was admitted for "symptoms of restlessness, anxiety, sadness, and crying spells, secondary to job-related problems he was experiencing." She noted further that the diagnosis rendered at the time of the Veteran's hospitalization in 1991 "was of an adjustment disorder with mixed emotional features, and it was clearly related to job-related issues." She also noted further that a diagnosis of adjustment disorder with mixed emotional features in 1999 "was secondary to the marital difficulties the Veteran was experiencing at that time, and in fact, his marriage ended in a divorce." The Veteran still lived with his mother. He had not worked since 1997. This examiner also stated: When the Veteran was asked about his psychiatric condition...it was quite difficult to have him just answer the questions directly because he is very circumstantial, he tends to go into a lot of elaboration and he continuously brings up all past issues about the legal case that he had against the Navy and the many years that he has been dealing with [the VA] in order to have his benefits adequately compensated. He kept making reference to all the evidence that he has submitted in the claims folders. Mental status examination of the Veteran on February 11, 2005, showed he was "cleanly dressed and groomed" with full orientation, no impairment of thought process or communication, no delusions or hallucinations "mentioned or active," no inappropriate behavior, no suicidal or homicidal ideation, an ability to maintain minimal personal hygiene and his activities of daily living, "no memory loss or intellectual impairment," "quite obsessive compulsive and has a strong tendency to somatize, increased rate and flow of speech "precisely because of his anxiety," no signs of depression or crying during the interview, no impaired impulse control, reported poor sleep "and it does not appear that his interrupted sleep affects or interferes with daytime activities." The VA examiner also stated: Despite continuous referrals to being depressed, the Veteran was mostly observed to be very anxious, very restless, and hyperactive, worried that we took into consideration all the evidence in his case, as he appears to be quite anxious to get an answer to his claim. He spoke, as we said, repeatedly, about all the issues regarding his problems that he had with the Navy and how they discriminated and harassed him on account of his absenteeism from work, he spoke about basically each and every one of the medical problems that he had has throughout the years most of all complications of diabetes. He referred how his skin conditions [e]specially the one in his groin tends to become worse at times and it is a vicious cycle because when he is extremely anxious, the pruritus increases, which in turn exacerbate[s] his skin condition, which in turn ends up making him feel more anxious as well. The VA examiner concluded that the Veteran had moderate to moderately severe impairment in occupational functioning and only mild to moderate impairment in social functioning. This examiner also concluded that she could not distinguish between the Veteran's service-connected and non-service-connected skin conditions and how they affected his psychiatric condition. The Veteran's GAF score was 55, indicating moderate symptoms. The Axis I diagnoses included anxiety disorder, not otherwise specified, with depressive features. It was noted on Axis IV that the Veteran's psychosocial stressors included service-connected and non-service-connected skin disabilities, "unresolved issues regarding previous job-related difficulties, unresolved issues regarding the failure of his marriage, [and] present personal and family situation." In a rating decision dated on May 20, 2005, and issued to the Veteran on June 1, 2005, the AMC granted, in pertinent part, the Veteran's claim for a disability rating greater than 10 percent for anxiety disorder, assigning a 50 percent rating effective February 11, 2005. The RO concluded that February 11, 2005, was the correct effective date for a 50 percent rating for the Veteran's service-connected anxiety disorder because that was the first date that the evidence showed worsening symptoms. In a letter dated on July 12, 2005, and date-stamped as received by the Board on July 18, 2005, the Veteran disagreed with the effective date of February 11, 2005, for a 50 percent rating for anxiety disorder and requested an earlier effective date. An August 2005 translation of a document originally received by the RO on February 6, 2005, shows that, in November 2003, Dr. M.P.A. stated that she had treated the Veteran from May 2000 to October 2002 "in monthly appointments" and again from May to November 2003. The Veteran's GAF score was 51 to 60, indicating moderate symptoms. The Axis I diagnosis was mood disorder of the depressive type. In a letter dated on April 17, 2006, and date-stamped as received by the RO on April 19, 2006, the Veteran contended that the appropriate effective date for a 50 percent rating for his service-connected anxiety disorder should be October 21, 1991, "the date I made the request." In statements on his August 2006 VA Form 9 (substantive appeal), the Veteran contended that his problems with absenteeism while he was employed demonstrated that his service-connected anxiety disorder had worsened. He also contended that the fact that he took disability retirement in 1997 as a result of his service-connected anxiety disorder demonstrated that this disability was more disabling than currently evaluated. Attached to this form were copies of private psychiatric evaluations conducted in the early 1990's which were considered previously by the RO in the December 2001 rating decision that was not appealed to the Board. The Board acknowledges the Veteran's lay assertions that he has experienced the same level of disability due to his service-connected anxiety disorder at least since he took disability retirement from Federal service in 1997 or, alternatively, since he first sought service connection for anxiety disorder in October 1991, entitling him to an earlier effective date for a 50 percent rating for this disability. As noted elsewhere, because the Veteran has not prosecuted an initial rating claim for anxiety disorder continuously since October 1991 (as he was advised by the Board in January 2006), his attempt to disturb the finality of the December 2001 rating decision, which granted service connection for anxiety disorder and assigned an initial 10 percent rating effective November 7, 1996, by filing a freestanding earlier effective date claim is prohibited as a matter of law. See Rudd, 20 Vet. App. at 296. The competent evidence also does not support the Veteran's assertions regarding a worsening of his service-connected anxiety disorder, at least prior to February 11, 2005, however. It shows that, prior to this date, the Veteran's service-connected anxiety disorder is manifested by, at worst, mild or transient symptoms including somatic complaints, a preoccupation with feelings of depression and anxiety, social isolation from friends, and an inability to concentrate when trying to read (as noted on a private psychiatric report in July 2004). The Veteran's GAF scores reflect, at worst, serious symptoms. Contrary to the Veteran's assertions in statements on his August 2006 VA Form 9 (substantive appeal), the GAF scores obtained in July 2004 and in February 2005 do not show that his service-connected anxiety disorder had worsened. In fact, the consistency in these scores rendered by 2 different examiners almost a year apart persuasively suggests that the Veteran's service-connected anxiety disorder had not worsened between these examinations. VA examination of February 11, 2005, clearly showed, however, that the Veteran's social and occupational impairment due to his service-connected anxiety disorder had worsened, entitling him to a higher 50 percent rating for this disability as of the date of this examination. The Board observes that, although the Veteran complained at length that he was severely depressed at his February 2005 VA examination, the VA examiner concluded that, in fact, the Veteran was "very anxious, very restless, and hyperactive." This examiner also noted the Veteran's fixation on his multiple medical problems and the problems he had at his job prior to his disability retirement in 1997. The Veteran finally was "quite obsessive compulsive" and his speech was pressured due to his increased anxiety. The Board observes that the laws and regulations governing effective dates are clear. The effective date of an increase in disability compensation will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date; otherwise, the effective date is the date of receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(2). In this case, the evidence does not indicate that the Veteran's service-connected anxiety disorder worsened prior to February 11, 2005, when he was seen on VA examination. This VA examination report was interpreted correctly by the RO as the Veteran's informal increased rating claim for service-connected anxiety disorder. The Veteran also has not identified or submitted any competent evidence, to include a medical nexus, demonstrating his entitlement to an effective date earlier than February 11, 2005, for a 50 percent rating for service-connected anxiety disorder. In summary, the Board finds that the criteria for an earlier effective date than February 11, 2005, for a 50 percent rating for anxiety disorder have not been met. The Board finally finds that the preponderance of the evidence is against the Veteran's claim of entitlement to an earlier effective date than February 25, 2011, for a grant of a TDIU. The Board notes initially that the Veteran's original informal claim of entitlement to a TDIU was included in a letter from a private physician dated on July 11, 1996, and date-stamped as received by the RO on August 27, 1996. In this letter, the physician stated that there were "several circumstances which have affected [the Veteran's] possibilities and effectiveness in his job situation." This physician noted the Veteran's rate of absenteeism since 1990 of nearly 400 hours of missed work per year. This physician also noted that the Veteran currently worked a modified work schedule "which makes absenteeism greater at a rate of 2-3 days per week (12-18 [hours] a week)." This physician noted further that, despite the accommodation of a modified work schedule, the Veteran's "absenteeism rate was not reduced [and] on the contrary it seemed to escalate further." This physician recommended that the Veteran receive disability retirement from Federal service due to his chronic diabetes mellitus and generalized anxiety disorder. The RO appropriately interpreted this letter as an informal TDIU claim. On a VA Form 21-4192, "Request For Employment Information In Connection With Claim For Disability Benefits," dated on October 15, 1996, and date-stamped as received by the RO on October 17, 1996, the Veteran's employer reported that the Veteran was "still working" as a supply clerk 30 hours a week and had worked at this job since June 22, 1980. In February 1997, the Veteran submitted copies of a document entitled "Master Leave History." Although these documents are incomplete, they appear to show that the Veteran took 340 hours of leave without pay in 1996. As noted above, in a rating decision dated on April 7, 1997, and issued to the Veteran and his service representative that same day, the RO denied the Veteran's claim of entitlement to a TDIU. The RO determined that the Veteran was not entitled to a TDIU because the evidence demonstrated that he still was gainfully employed. The RO also noted that the Veteran did not meet the schedular criteria for a TDIU. The Veteran submitted additional evidence in support of his TDIU claim on April 8, 1997. This evidence included a March 11, 1997, letter from OPM which indicated that his application for disability retirement had been approved. As noted above, there is a handwritten note at the bottom of this letter which reads, "Entitlement to individual unemployability pending from VA." In a letter date-stamped as received by the RO on April 11, 1997, the Veteran disagreed with the denial of his TDIU claim. The Veteran contended that his disability retirement from Federal service entitled him to a TDIU as of the date of his retirement. Attached to this letter were additional copies of the March 1997 letter from OPM approving the Veteran's disability retirement application. In statements on his VA Form 9 (substantive appeal) dated on June 30, 1997, and date-stamped as received by the RO on July 1, 1997, the Veteran contended that he had been forced to retire from Federal service as a result of his service-connected skin disability and anxiety disorder. He also contended that the circumstances of his retirement entitled him to a TDIU. On VA psychiatric examination on February 11, 2005, it was noted that the Veteran last had been examined for Compensation and Pension (C&P) purposes in October 1998 although no social field survey was conducted at that time "because the Veteran gave misleading information regarding his address." The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. This examiner stated that the Veteran's only psychiatric hospitalization had occurred in 1991. She also stated that the Veteran had not worked since 1997. Mental status examination of the Veteran showed that he spoke "repeatedly about all the issues regarding the problems that he had with the Navy and how they discriminated and harassed him on account of his absenteeism from work." The examiner also noted that the Veteran seemed focused on complications from his diabetes mellitus. With respect to the impact of the Veteran's service-connected disabilities on his employability, the VA examiner stated, "The signs and symptoms reported and observed by this Veteran represent more interference with employment than with social functioning. In terms of employment, we considered the Veteran to have moderate-to-moderately severe impairment." As noted in the Introduction, in a rating decision dated on May 20, 2005, and issued to the Veteran on June 1, 2005, the AMC granted, in pertinent part, the Veteran's claim of entitlement to a TDIU effective February 11, 2005. The AMC found that the Veteran was entitled to a TDIU because he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The AMC also essentially determined that February 11, 2005, was the appropriate effective date for a grant of a TDIU because that was the date that he met the schedular criteria for a TDIU. The Board acknowledges the Veteran's lay assertions that he is entitled to an earlier effective date than February 11, 2005, for the grant of a TDIU. The evidence does not support these assertions, however. The Veteran essentially has contended that, because he has been retired since 1997, he is entitled to a TDIU as of his retirement date in 1997. The Board disagrees, emphasizing that, at the time that he filed his original informal TDIU claim in August 1996, the Veteran still was gainfully employed and did not take disability retirement from Federal service until March 1997. Critically, the Board finds that the Veteran's argument concerning his entitlement to an earlier effective date for the grant of a TDIU also ignores the fact that he did not meet the schedular criteria for a TDIU until February 11, 2005. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). As noted above, service connection is in effect only for a skin disability, evaluated as 50 percent disabling effective February 25, 1976, and for anxiety disorder, evaluated as 10 percent disabling effective November 7, 1996, and as 50 percent disabling effective February 11, 2005. The Veteran's combined disability evaluation for compensation was 50 percent effective February 25, 1976, 60 percent effective November 7, 1996, and 80 percent effective February 11, 2005. See 38 C.F.R. § 4.25 (2012). Because service connection is in effect for multiple disabilities, the Veteran did not meet the schedular criteria for a TDIU until his combined disability evaluation for compensation exceeded 70 percent (i.e., not until February 11, 2005, when his combined disability evaluation for compensation was 80 percent). See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The competent evidence also does not show that the Veteran was unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected skin disability and anxiety disorder until VA examination on February 11, 2005. At that examination, the VA examiner opined that the Veteran experienced moderate to moderately severe impairment with employment as a result of these service-connected disabilities. Id. The Board acknowledges that the Veteran and his attorney have submitted voluminous evidence in support of the argument that he has been unemployable due to his service-connected disabilities since he took disability retirement in 1997. Both the Veteran and his attorney suggest that the mere fact of his disability retirement in 1997 somehow entitles him to a TDIU. This "argument" is a serious misunderstanding of relevant VA law and regulations governing an award of a TDIU which require both an inability to secure and follow a substantially gainful occupation solely as a result of service-connected disabilities and specific levels of VA disability compensation. Id. The evidence submitted regarding the Veteran's disability retirement discusses in very general terms the date of his retirement from Federal service and his entitlement to an annuity and other Federal retiree benefits. It does not suggest that the Veteran's disability retirement was solely the result of his service-connected disabilities. The Board also notes that much of the evidence submitted since 1997 is duplicative of evidence previously submitted to VA and considered by the RO. In summary, although the evidence suggests that the Veteran has pursued a TDIU claim since August 1996, the Board finds that he was not entitled to a TDIU until February 11, 2005, when the competent evidence demonstrated that his service-connected disabilities interfered with his employability and he met the schedular criteria for a TDIU. The Board observes that the laws and regulations governing effective dates are clear. The effective date of an evaluation of an award of compensation based on an original claim 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. In this case, although the evidence of record demonstrates that the Veteran filed an informal TDIU claim on August 27, 1996, it also shows that he was not entitled to a TDIU until February 11, 2005. The Veteran also has not identified or submitted any competent evidence demonstrating his entitlement to an earlier effective date than February 11, 2005, for a grant of a TDIU. Thus, the Board finds that the criteria for assigning an effective date earlier than February 11, 2005, for a grant of a TDIU are not met. ORDER Entitlement to an earlier effective date than February 11, 2005, for a 50 percent rating for anxiety disorder is denied. Entitlement to an earlier effective date than February 11, 2005, for a grant of a TDIU is denied. REMAND Inasmuch as the Board sincerely regrets the additional delay of the adjudication of this matter, and although the Board is aware that this claim has been remanded on several occasions already, another remand is necessary before the Veteran's claim for a disability rating greater than 50 percent for a skin disability can be adjudicated. The Veteran and his attorney essentially contend that his service-connected skin disability is more disabling than currently evaluated. They also specifically contend that this disability has worsened since the Veteran's most recent VA examination. The attorney advanced this argument in August 2008 correspondence sent to VA. A review of the claims file shows that the Veteran's most recent VA examination occurred in May 2009. The Board notes that VA's duty to assist under the VCAA includes obtaining an examination or medical opinion when necessary. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA examination in May 2009, the Board finds that, on remand, he should be scheduled for updated VA examination to determine the current nature and severity of his service-connected skin disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. The Board notes in this regard Veteran's skin disability currently is evaluated as 50 percent disabling effective February 25, 1976, by analogy to 38 C.F.R. § 4.118, DC 7806 (dermatitis or eczema). See 38 C.F.R. § 4.118, DC 7806 (2012). The Board notes that the regulations for evaluating skin disabilities were revised effective August 30, 2002. See 67 Fed. Reg. 49596 (July 31, 2002). Thus, the Veteran is entitled to the application of the version of the regulation that is more favorable to him from the effective date of the new criteria; only the former criteria are to be applied for the period prior to the effective date of the new criteria. VAOPGCPREC 3-2000. Prior to August 30, 2002, a 10 percent rating was assigned under DC 7806 for eczema with exfoliation, exudation, or itching, if involving an exposed surface or extensive area. A 30 percent rating was assigned for eczema with constant exudation or itching, extensive lesions, or marked disfigurement. A maximum 50 percent rating was assigned under the former DC 7806 for eczema with ulceration or extensive exfoliation or crusting and systemic or nervous manifestations or if it was exceptionally repugnant. See 38 C.F.R. § 4.118, DC 7806 (effective prior to August 30, 2002). The revised DC 7806 provides a 10 percent rating for dermatitis or eczema affecting at least 5 percent, but less than 20 percent, of the entire body or exposed areas of the body or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than 6 weeks during the past 12-month period. A 30 percent rating is assigned for dermatitis or eczema affecting 20 to 40 percent of the entire body or exposed areas of the body or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, during the past 12-month period. A maximum 60 percent rating is assigned for dermatitis or eczema affecting more than 40 percent of the entire body or exposed areas of the body or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. See 38 C.F.R. § 4.118, DC 7806 (2012). The Board finds that, on remand, the former and revised rating criteria for evaluating skin disabilities should be considered by the RO as appropriate. The RO also should attempt to obtain the Veteran's up-to-date VA and private treatment records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact the Veteran and/or his attorney and ask them to identify all VA and non-VA clinicians who have treated him for his service-connected skin disability in recent years. Advise the Veteran not to resubmit any records previously submitted, to include information regarding his prescriptions or any information pertaining to disabilities other than his service-connected skin disability. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. If any records obtained are not in English, please obtain translations of these records and include the translations in the claims file. If any records provided by the Veteran or his attorney are duplicative of evidence previously submitted, please send it back to them. 2. Schedule the Veteran for appropriate in-person VA examination to determine the current nature and severity of his service-connected skin disability. The claims file and a copy of this remand must be made available to the examiner in conjunction with the examination. All appropriate tests and studies should be accomplished. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the Veteran's claims file and the results of his physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to state whether the service-connected skin disability is manifested by dermatitis or eczema affecting more than 40 percent of the entire body or exposed areas of the body or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. A complete rationale must be provided for any opinions expressed. 3. The Veteran should be given adequate notice of the requested in-person examination which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 5. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his attorney. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs