Citation Nr: 1302306 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 10-33 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether or not service-connected burial benefits in the amount of $2,000 were paid to the appellant. 2. Entitlement to service connection for hypertension, to include as due to Agent Orange exposure, for accrued benefits purposes. 3. Entitlement to an evaluation in excess of 70 percent posttraumatic stress disorder (PTSD) for accrued benefits purposes. 4. Entitlement to service connection for ischemic heart disease for accrued benefits purposes. 5. Whether the claim for an earlier effective date for the grant of service connection for PTSD for accrued benefits purposes is valid. 6. Whether the claim for special monthly compensation for accrued benefits purposes is valid. ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from August 1962 to July 1965. The Veteran died in February 2009, and the appellant is the Veteran's surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) from various rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO). Pursuant to the appellant's request, she was scheduled for a videoconference hearing in May 2012. However, the appellant failed to appear for that hearing. A postponement was not requested or granted. The appellant has not asserted any good cause for missing the hearing or requested that it be re-scheduled. Under these circumstances, the regulations consider the hearing request to have been withdrawn. 38 C.F.R. § 20.704 (2012). Additionally, in a January 2012 statement, the appellant appears to be raising a claim for service connection for amyloidosis. However, in a February 2009 rating decision, the RO granted service connection for AL amyloidosis with kidney and liver dysfunction. As this represents a full grant of the benefit sought, this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the appellant's claims. A review of the documents in the electronic file to date reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal that the Board is adjudicating in this decision. FINDINGS OF FACT 1. The appellant received two checks from the United States Treasury in the combined amount of $2,000, and cashed both checks. 2. At the time of the Veteran's death, the claims for service connection for hypertension and an evaluation in excess of 70 percent for PTSD were still pending. 3. At the time of the Veteran's death, preponderance of the evidence was against a finding that hypertension was related to service. 4. At the time of the Veteran's death, the evidence on file did not show that his service-connected PTSD was manifested by total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. 5. At the time of the Veteran's death, he had no pending claims pertaining to the issues of service connection for ischemic heart disease, an earlier effective date for the grant of service connection for PTSD, and/or special monthly compensation. 6. The appellant's claim for service connection for ischemic heart disease for accrued benefits was received in August 2010, over one year after the Veteran's death. CONCLUSIONS OF LAW 1. Service-connected burial benefits in the amount of $2,000 were paid to the appellant. 38 U.S.C.A. § 2302 (West 2002); 38 C.F.R. §§ 3.1600, 2307 (2012). 2. Hypertension was not incurred in or aggravated by service, to include as due to herbicides exposure therein, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303 , 3.307, 3.309 (2012). 3. The criteria for an evaluation in excess of 70 percent rating for PTSD, for accrued benefits purposes, have not been met. 38 U.S.C.A. §§ 1155 , 5107, 5121 (West 2002); 38 C.F.R. §§ 3.1000, 4.7, 4.130, Diagnostic Code 9411 (2012). 4. The requirements for service connection for ischemic heart disease for accrued benefits purposes have not been met. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2012). 5. The claim for an earlier effective date of service connection for PTSD for accrued benefits purposes is not valid. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2012). 6. The claim for special monthly compensation for accrued benefits purposes is not valid. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353 -56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the claimant to provide any evidence in the claimant's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1) (2012)). The Board finds that all notification action needed to make a decision as to the claims on appeal has been accomplished. Through a February 2009 notice letter, prior to a February 2009 rating decision, the appellant was notified of the information and evidence needed to substantiate her claims for accrued benefits, including information regarding the claims that were pending at the time of the Veteran's death. There is no indication that any additional action is needed to comply with the duty to assist in connection with the accrued benefits claims. For accrued benefits purposes, only evidence contained, or constructively contained, in the claims file is for review. Here, the appropriate evidence is already associated with the claims file. No further information or evidence is thus required for the claims. Burial Benefits The appellant essentially argues that she is entitled to burial benefits for the Veteran, and that she never received payments for the Veteran's burial expenses. A burial allowance is payable under certain circumstances to cover the burial and funeral expenses of a veteran and the expense of transporting the body to the place of burial. 38 U.S.C.A. § 2302 (West 2002); 38 C.F.R. § 3.1600 (2012). 38 U.S.C.A. § 2307 in relevant part states that in the case of a veteran who dies as a result of a service-connected disability, his/her survivor will be paid the burial and funeral expense incurred in connection with the death of the veteran in an amount not exceeding $2000. In this case, there is no doubt that the appellant was granted service connection for the cause of the Veteran's death. In a February 2009 rating decision, the RO granted service connection for the cause of the Veteran's death. Additionally, pursuant to the appellant's Application for Burial Benefits received in February 2009, in a March 2008 letter the RO, indicating that the Veteran's death was not service-connected, granted burial benefits in the amount of $1400, the maximum allowable for non-service connected deaths. Thereafter, the appellant filed another Application for Burial Benefits received in March 2009. In response to that application, in a January 2010 letter the RO acknowledged that it had incorrectly indicated that the Veteran's death was not service-connected in its March 2008 letter and granted a supplemental payment of $600 for a total payment of $2000. Furthermore, the record includes copies of two cancelled checks from the United States Treasury in the amount of $1400 issued in March 2009 (check number 2221 37156892) and $600 issued in February 2010 (check number 2221 92190942) made out to the order of the appellant with the Veteran's name below with a notation of "BURIAL AWD." Furthermore, the copies of the cancelled checks show that the appellant endorsed the checks. The Board notes that the crux of the appellant's assertions is that she never received payment for the Veteran's burial benefits and VA has not demonstrated any proof that the payments were made. However, the evidence of the cancelled checks with the appellant's endorsements directly contradicts her argument. In this regard, the Board noted that there is a presumption of regularity as to the administrative functions of the government. Clear evidence to the contrary is required to rebut the presumption of administrative regularity. See Ashley v. Derwinski, 2 Vet. App. 307 (1992). In this case, as outlined above, there no credible evidence to rebut the presumption of administrative regularity as the evidence shows that appellant not only received payment in the amount of $2,000 for the Veteran's burial benefits but that she also cashed both checks. Therefore, there is no issue left for resolution. Accrued Benefits Upon the death of a veteran, his lawful surviving spouse may be paid periodic monetary benefits to which he or she was entitled at the time of death, and which were due and unpaid for a period not to exceed two years, based upon existing rating decisions or other evidence that was on file when the veteran died. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2012). A consequence of the derivative nature of a surviving spouse's claim for entitlement to a veteran's accrued benefits is that, without the veteran having a claim pending at time of death, the surviving spouse has no claim upon which to base his or her own application. Jones v. West, 136 F.3d 1296 (Fed. Cir. 1996). An application for accrued benefits must be filed within one year after the date of death. A claim for death pension, compensation, or dependency and indemnity compensation, by a surviving spouse is deemed to include a claim for any accrued benefits. 38 C.F.R. §§ 3.1000(c), 3.152(b) (2012). However, for claims for death benefits, a specific claim in the form prescribed by the Secretary must be filed in order for death benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.152(a) (2012). The evidence for review must have been in VA's possession or constructively in VA's possession at the date of the Veteran's death. 38 C.F.R. § 3.100(d)(4) (2012). The record reflects that the Veteran died in February 2009. Hypertension In this case, the record shows that the Veteran had a claim pending for entitlement to service connection for hypertension at the time of his death. In April 2008, the RO received the Veteran's original claim of entitlement to service connection for hypertension. At the time of the Veteran's death in February 2009, the RO had not yet adjudicated the Veteran's claim for service connection. Therefore, the issue of service connection for hypertension remained pending and unadjudicated at the time of the Veteran's death. The appellant filed her claim for accrued benefits in February 2009 within one month of the Veteran's death. Thus, her claim was timely filed. Furthermore, because the appellant's claim is for the purpose of accrued benefits, the Board is prohibited from considering medical evidence received after the date of the Veteran's death, other than VA records that were constructively of record at the time of death. 38 U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. § 3.1000(a) (2012). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). For VA rating purposes, "hypertension" means that diastolic blood pressure is predominately 90 millimeter (mm) or greater; "isolated systolic hypertension" means that the systolic blood pressure is predominately 160 mm or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2012). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). The Veteran's service treatment records do not demonstrate treatment for or a diagnosis of hypertension. The examination at service discharge showed that the Veteran's blood pressure reading was 110/70. Additionally, hypertension did not manifest within a year of service discharge. Consideration on a presumptive basis for hypertension is thus not warranted. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The first indication in the record of hypertension was not until January 2004, which is 39 years after service discharge. In view of the lengthy periods without treatment, there is no evidence of continuity of symptomatology and this weighs against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F. 3d 1328 (1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, the fact that service treatment records are negative for any findings or diagnoses of hypertension or elevated blood pressure readings and the first indication of the claimed disability is not until nearly four decades after service weighs against a finding that such was present in service. Furthermore, there is no probative evidence that the Veteran's hypertension was related to service. The Board notes that the crux of the Veteran and appellant's contentions is not that he developed hypertension during service, but rather that exposure to herbicide agents in service caused him to develop hypertension after his separation from service. In first addressing the Veteran's contentions that his hypertension was caused by in-service exposure to herbicide agents, the Board observes that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to herbicides during that service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307 (2012). In this case, the RO has already conceded in-country service in Vietnam during the Vietnam War era, therefore the Veteran is presumed to have been exposed to herbicide agents. Significantly, however, hypertension is not one of the diseases which has been determined to have a positive correlation with herbicide exposure. Although ischemic heart disease has been added to the list of diseases presumed to be associated with a history of exposure to herbicide agents, VA has declined to extend that presumption to hypertension. See Diseases Associated with Exposure to Certain Herbicide Agents (Hairy Cell Leukemia and Other Chronic B-Cell Leukemias, Parkinson's Disease and Ischemic Heart Disease), 75 Fed. Reg. 53202, 53204 (Aug. 31, 2010). In December 2010, the Secretary of Veterans Affairs reiterated that service connection for hypertension, among other diseases identified in the July 24, 2009, National Academy of Sciences (NAS) report, "Veterans and Agent Orange: Update 2008," was not warranted based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era. See Health Outcomes Not Associated With Exposure to Certain Herbicide Agents; Veterans and Agent Orange: Update 2008, 75 Fed. Reg. 81332, 81333 (Dec. 27, 2010). Based upon the findings in the NAS report, VA amended 38 C.F.R. § 3.309(e) for the express purpose of adding a Note to § 3.309(e) clarifying that the term "ischemic heart disease" does not include hypertension." See 75 Fed. Reg. 53202, 53216. Nevertheless, the unavailability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). However, in the absence of any competent evidence relating a disease not listed in 38 C.F.R. § 3.309(e) to exposure to herbicide agents, service connection as secondary to exposure to herbicide agents is not warranted. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In this case, there is no competent evidence linking the Veteran's hypertension to exposure to herbicide agents. In this regard, the Board has considered the Veteran and the appellant's general assertions relating his hypertension to in-service exposure to an herbicide agent. Neither the Veteran nor appellant, as laypeople, is competent to relate his hypertension to in-service exposure to herbicide agents. See Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (holding that knowledge, skill, experience, training or education is necessary for an etiological opinion where the veteran is not competent to identify the medical condition and its cause); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that a professional medical opinion is not required to establish a nexus if a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). As neither the Veteran nor appellant is competent to provide an opinion relating his hypertension to in-service exposure to herbicide agents, their lay statements attesting to such a relationship are entitled to no probative weight. There is nothing in the record to suggest that the Veteran or appellant had/has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of hypertension. See 38 C.F.R. § 3.159 (a)(1) (2012) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Accordingly, the lays statements in this case are not competent evidence. In sum, the lay and medical evidence shows that the Veteran developed hypertension many years after service, and there is no competent link between the Veteran's hypertension and service, to include exposure to herbicides therein. As the preponderance of the evidence is against the claim for service connection, the claim must be denied. 38 U.S.C.A. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). An increased evaluation for PTSD The record shows that the Veteran had a claim pending of entitlement to an increased evaluation for PTSD, which was rated as 70 percent disabling. At the time of the Veteran's death in February 2009, the RO had not yet adjudicated the Veteran's claim for an increased rating. Therefore, the issue of an increased evaluation for PTSD remained pending and unadjudicated at the time of the Veteran's death. The appellant filed her claim for accrued benefits in February 2009 within one month of the Veteran's death. Thus, her claim was timely filed. Furthermore, because the appellant's claim is for the purpose of accrued benefits, the Board is prohibited from considering medical evidence received after the date of the Veteran's death, other than VA records that were constructively of record at the time of death. 38 U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. § 3.1000(a) (2012). Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2012). While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran's PTSD was evaluated as 70 percent disabling under Diagnostic Code 9411. Under that diagnostic code, a 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). A 100 percent evaluation is warranted where there is evidence of total occupational and social impairment due to gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM- IV), p. 32). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126 (2012); VAOPGCPREC 10-95 (Mar. 1995); 60 Fed. Reg. 43186 (1995). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. See 38 C.F.R. § 4.126 (2012). Age may not be considered as a factor in evaluating a service-connected disability. 38 C.F.R. § 4.19 (2012). In addition to PTSD, for which service connection has been established, the record shows an additional diagnosis of depression, which is not currently service-connected. It is now well-settled that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability, in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). The medical evidence in the instant case does not differentiate between the symptomatology associated with the Veteran's PTSD and that resulting from his nonservice-connected depression. Further, no mental health professional has attempted to distinguish between said symptomatology. It appears that to delineate between PTSD and depression would be an impossibility. Accordingly, for the purposes of this decision, the Board will attribute all of the Veteran's psychiatric symptoms to his service-connected PTSD. The relevant evidence of record includes a May 2007 VA treatment record noting that the Veteran's wife complained of the Veteran hallucinating about war scenes and becoming delusional. In a June 2007 letter, the Veteran stated that he had flashbacks, forgetting where he was/what he was doing, waking up sweating thinking about the war. He indicated that his family reported that he walked in his sleep, ran in circles, yelled, and fought anyone that tried to stop his behavior. He wrote that most of the time he felt that the enemy was trying to get him, and his family was afraid of him when he behaved in those ways, and he was not even aware that he was doing those things. The Veteran also recounted that he did not sleep much due to his nightmares, and that he did not eat much or go out. A July 2007 VA treatment record noted that the Veteran's primary complaint was trouble sleeping for over 40 years. He could fall asleep but woke up two to three times a night; his wife reported that he sometimes cursed and fought in his sleep, and at times he was loud enough to wake others up in the house. The Veteran indicated that he slept four to five hours a night and had nightmares once a week that woke him up. He was able to go back to sleep sometimes but other times he remained awake for a while. The Veteran reported intrusive thoughts, not liking to watch the news and, turning the TV off if there were reports of the war. His wife indicated that the Veteran startled easily and was very defensive, and he stated that he paced and stared into space. He reported that recently his interests for things had declined and that his mind was not as sharp and his wife felt that his performance had change (e.g. not calling clients back about work and retreating to a back room when family came to visit). He avoided outings, and he indicated that he did not have as much energy as before. Overall, he felt good about life, was family oriented, and enjoyed life though his wife added that he did not always act like he did. He did not feel like he was better off dead. He had no suicidal or homicidal ideation. Mental status evaluation revealed that he was clean shaven, friendly, guarded with good eye contact, down mood, and stable and depressed affect with constricted range. His slowed and soft speech was punctuated with long pauses. His thought process was coherent, logical, and linear; and thought content was devoid of suicidal or homicidal ideation or delusions, and he had good judgment and insight. With regard to cognition, he scored a 27/30 and could not remember two words and drawing was not correct. The clinician noted that the Veteran presented with symptoms of PTSD with a history of trauma, about which he avoided talking and had trouble watching the news. He had become isolative and no longer did things he once did, had trouble staying asleep because of nightmares, and became defensive if people walked up to him from behind and scared him. He had strong social support, and good judgment and insight into his disorder. It was noted that he was started on medication to help with sleep. A diagnosis of PTSD was given and a GAF score of 55 was assigned. VA treatment records dated in August 2007 noted that the Veteran had nightmares one to two times a week, avoided people, and enjoyed some activities but limited his activities. The Veteran indicted that he kept busy during the day to avoid thoughts from the past. He did not report depression, although he fell that way in the past. On evaluation, the clinician observed that the Veteran was in a good mood, demonstrated a euthymic affect and linear thought process, and was without suicidal or homicidal ideation or psychosis. A diagnosis of PTSD was noted and a GAF score of 55 was assigned. The clinician summarized that although the Veteran had some avoidance and nightmares, he was generally able to functional pretty well with nightmares being his primary complaint. A September 2007 VA treatment record noted that the Veteran reported having nightmares two times a week and generally slept eight hour with a few nighttime awakenings. While other people made him nervous, he was able to get around it for the most part. He worked in construction and was able to go to the grocery store as needed. Although he had trouble with intrusive thoughts, he was able to put them out of his mind. He also reported some situational depression related to bills, but had no prolonged period of depression. On evaluation, the clinician observed that the Veteran was in a good mood, demonstrated a euthymic affect with full range, linear thought process, and without suicidal or homicidal ideation or psychosis. A diagnosis of PTSD was noted and a GAF score of 61 was assigned. The clinician opined that the Veteran had been fairly highly functioning despite his PTSD diagnosis, and continued to work in construction and was not limited by avoidance or anxiety. His major complaint was nightmares, and his medication was increased for several days. A February 2008 VA examination report reflects that the claims folder was reviewed. The Veteran's wife indicated that the Veteran yelled and fought during the night three times a week, and the Veteran indicated that he did not remember the contents of his dreams. She also reported to the examiner that the Veteran had been more isolated, stared off into space, and more distant from his grandkids in the last few months. When questioned about what bothered him the most, the Veteran stated that he blanked out while driving two or three months before, and indicated that he did not have any particular thoughts. After further questioning of the Veteran, the examiner noted that the Veteran had thoughts about Vietnam about two months before but it would not be considered a flashback. The Veteran's wife reported that he lost 40-60 pounds over the last two years, and stopped working two to three months before due to his back problems. The Veteran denied drug or alcohol use. On evaluation of the Veteran, the examiner observed that the Veteran was casually groomed and cooperative throughout the interview. He maintained fair eye contact, had slow and soft spoken speech, mood was euthymic, affect was appropriate to content, thought processes and associations were logical and tight without loosening of associations or confusion. Also, the Veteran was oriented to all spheres without evidence of delusions or hallucinations, and insight and judgment were deemed fair. He denied any suicidal or homicidal ideations. A diagnosis of depressive disorder was given, and a GAF score of 58 was assigned. The examiner noted that the severity of the Veteran's symptoms were mild to moderate, and the duration of the symptoms was within the last couple of months. His symptoms did not preclude employment, but social functioning was impacted by isolation and depression. There was no evidence of thought impairment or communication. As to sleep disturbances with and periodic thoughts of wartime experiences, these symptoms did not meet the criteria for a diagnosis of PTSD based on their frequency, severity, and number of symptoms. The examiner indicated that the complaints of memory lapses could not be tied to PTSD. She further noted that the depressive symptoms likely had a detrimental effect on memory and concentration, but the other symptoms described would not suggest that the severity would be expected to be what the Veteran had described as "blanking out" when he was driving. Additionally, VA treatment records dated in 2008 and 2009 demonstrate that the Veteran had grossly impaired cognition, poor insight and judgment, and slow thought process. He was hospitalized and delirium was diagnosed. In this regard, a January 2011 VA examination report was rendered to determine the status of the Veteran's psychiatric disorder from 2008 to 2009. Upon review of the claims folder, the VA examiner pertinently determined that there was no evidence that the various neuropsychological and cognitive problems were related to the Veteran's PTSD or depression, and were possibly related to steroid induced psychosis, recent infection leading to delirium, or liver and kidney dysfunction. The examiner concluded that he did not have enough evidence to speculate as to the causes of the Veteran's delirium except to state that they were not related to PTSD or depression. Based on the evidence, the Board does not find that the Veteran met the criteria for a 100 percent evaluation prior to his death. Although his PTSD was certainly shown to be severe; however, he did not demonstrate total social impairment, to include as due to symptoms such gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation or own name to warrant a 100 percent evaluation. See supra 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). As noted above, the Veteran was functioning very well and maintained close relationships with his family and worked in construction, only quitting due to his back. His main issue was sleep. Therefore, he did not meet the criteria for a 100 percent evaluation. Additionally, the Veteran's GAF scores of 55, 58, and 61 are commensurate with no more than a 70 percent evaluation. GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); 38 C.F.R. § 4.130 (2012) (incorporating by reference the VA's adoption of the DSM-IV for rating purposes). The Board is cognizant that in the last year before his death, the Veteran was disoriented and demonstrated cognitive impairment, however, the January 2011 VA examiner specifically indicated that these symptoms were not related to PTSD or depression. Therefore, these symptoms will not be reviewed in evaluating the severity of the Veteran's disorder. The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b) (1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the Veteran had not required frequent hospitalizations for his PTSD and that the manifestations of his PTSD were not in excess of those contemplated by the schedular criteria. Furthermore, he was able to maintain employment and quit due to his back problems. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned ratings. Accordingly, the Board has determined that referral of the issue of entitlement to a higher rating for PTSD for extra-schedular consideration is not in order. Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim, and that claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Ischemic Heart Disease, Claim for an Earlier Effective Date of Service Connection for PTSD, and Claim for Special Monthly Compensation A review of the claims file demonstrates that although there were several outstanding claims at the time of the Veteran's death (and which were addressed above), there were no claims pending with regard to service connection for ischemic heart disease, an earlier effective date for the grant of service connection for PTSD, and/or special monthly compensation. For a surviving spouse to be entitled to accrued benefits, the Veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1996). Here, no such claims with regard to the issues of service connection for ischemic heart disease, an earlier effective date for the grant of service connection for PTSD, and/or special monthly compensation were pending at the time of the Veteran's death. In February 2009, the appellant filed an Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits by a Surviving Spouse or Child. As her claims for an earlier effective date for the grant of service connection for PTSD, and special monthly compensation both for accrued benefits were received less than one month after the Veteran's death, her claims with regard to these claims were timely. However, she did not file a claim for ischemic heart disease until August 2010, more than one year after the Veteran's death. In a December 2011 statement, the appellant argued that since the Veteran had a pending claim for hypertension, the VA should liberally construe the characterization of hypertension to encompass ischemic heart disease. She also contended that the Veteran's claim should have been part of the presumptive conditions granted pursuant to Agent Orange exposure. The Board notes that the regulations pertaining to presumptive conditions for Agent Orange are explicit as to the conditions which are covered. As noted above, although ischemic heart disease has been added to the list of diseases presumed to be associated with a history of exposure to herbicide agents, VA has declined to extend that presumption to hypertension. See Diseases Associated with Exposure to Certain Herbicide Agents (Hairy Cell Leukemia and Other Chronic B-Cell Leukemia's, Parkinson's Disease and Ischemic Heart Disease), 75 Fed. Reg. 53202, 53204 (Aug. 31, 2010). In December 2010, the Secretary of Veterans Affairs reiterated that service connection for hypertension, among other diseases identified in the July 24, 2009, NAS report, "Veterans and Agent Orange: Update 2008," was not warranted based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era. See Health Outcomes Not Associated With Exposure to Certain Herbicide Agents; Veterans and Agent Orange: Update 2008, 75 Fed. Reg. 81332, 81333 (Dec. 27, 2010). Based upon the findings in the NAS report, VA amended 38 C.F.R. § 3.309(e) for the express purpose of adding a Note to § 3.309(e) clarifying that the term "ischemic heart disease" does not include hypertension." See 75 Fed. Reg. 53202, 53216. Therefore, as the claims for hypertension and ischemic heart disease are two different claims, the appellant's claim for ischemic heart disease is not timely. As the claims file is absent any evidence that the Veteran had claims pending for service connection for ischemic heart disease, an earlier effective date for the grant of service connection for PTSD, and/or special monthly compensation at the time of his death, she is not legally entitled to these benefits. See 38 C.F.R. §§ 3.1000(c), 3.152(b) (2012). Additionally, the appellant did not file her application for ischemic heart disease within one year after the date of the Veterans' death. See id. The law pertaining to eligibility for accrued benefits is dispositive of this issue, the appellant's claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER The appellant was paid $2,000 for service-connected burial benefits. Service connection for hypertension, to include as due to Agent Orange exposure, for accrued benefits purposes, is denied. An evaluation in excess of 70 percent PTSD for accrued benefits purposes is denied. Service connection for ischemic heart disease for accrued benefits purposes is denied. The claim for an earlier effective date for the grant of service connection for PTSD for accrued benefits purposes is not valid. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs