Citation Nr: 1319228 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 09-34 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to an increased disability rating for asthma, currently evaluated as 60 percent disabling. 3. Entitlement to an increased disability rating for anxiety disorder, currently evaluated as 10 percent disabling. 4. Entitlement to an effective date prior to August 1, 2008 for the addition of a school age child as a dependent. 5. Entitlement to a finding of total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: John W. Campbell, Attorney at Law ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active service from February 1963 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. A claim for increased evaluation includes a claim for a TDIU where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, that issue is inferred here. The issues of entitlement to an increased disability evaluation for anxiety disorder and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Hypertension was not first manifested during active duty service or the first post-service year; hypertension is not attributable to military service. 2. Throughout the rating period, the Veteran's service-connected asthma has been manifested by no worse than FEV-1 of 45 percent and FEV-1/FVC of 46 percent, with daily oral bronchodilator therapy and anti-inflammatory medication and without use of corticosteroids or other immune-suppressive. 3. The Veteran did not file a claim for additional compensation based on dependent status prior to August 1, 2008. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria for a disability rating greater than 60 percent for asthma are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6602 (2012). 3. The requirements for an effective date earlier than August 1, 2008 for the addition of a school age child as a dependent have not been met. 38 U.S.C.A. §§ 1115, 5110(f) (West 2002); 38 C.F.R. §§ 3.4(b)(2), 3.204, 3.401(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in July 2008, August 2009, and August 2010, to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claims for service connection and an increased rating, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the Veteran's claim for an earlier effective date for the addition of a school age child as a dependent, the United States Court of Appeals for Veterans Claims (Court) has held that where the law, and not the underlying facts or development of the facts are dispositive in a matter, the duty to notify and assist can have no effect on the appeal. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). See also Smith v. Gober, 14 Vet. App. 227 (2002) (VCAA has no effect on appeal limited to interpretation of law); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, not factual evidence, is dispositive). Indeed, that is the case here, although the Board notes that adequate notice was provided and sufficient evidence was developed in this appeal and that no further development is required. VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of private and VA post-service treatment, and the Veteran's own statements in support of his claims. The Veteran was afforded VA examinations responsive to the claim for service connection of hypertension and the claim for an increased disability rating for asthma. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issues on appeal. The examination reports contain all the findings needed to rate the Veteran's service-connected disabilities and evaluate the claims for service connection, including his history and clinical evaluation. The opinion for service connection was conducted by a medical professional, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The Board finds that the opinion is adequate. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran's appeal for higher evaluations is distinguished from the facts in Proscelle v. Derwinski, 2 Vet. App. 629, 633 (1992), where no VA examination was provided during the rating claim, and a veteran specifically stated that his disability "has increased in severity [such] that I rate a higher disability," constituting at least both some assertion by the veteran and some evidence of worsening of disability since the last VA examination. Proscelle, 2 Vet. App. at 632. In the Veteran's case currently on appeal to the Board, there is no evidence of worsening of the Veteran's disability since the 2011 VA examination, including no assertion by the Veteran of worsening since the last VA examinations. The Veteran here does not assert that his disabilities have worsened since the May 2011 VA examination; he merely asserts entitlement to a higher disability evaluation. The Veteran has not submitted evidence of worsening, and the evidence of record, including the medical evidence reflecting on the severity of the disabilities on appeal, does not suggest that the disabilities on appeal have worsened since the last VA examination and VA treatment records in 2011. As there is no evidence of worsening since the last VA examination, a remand for a new VA examination is not warranted, and is not required by the VCAA. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); VAOPGCPREC 11-95 (interpreting that a new examination is appropriate when there is an assertion of an increase in severity since the last examination). The Veteran has been afforded adequate examinations on the issues decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the Veteran has not alleged that any examination is inadequate to decide the current claims, so the examinations are presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service 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). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including cardiovascular-renal disease (including hypertension) and organic diseases of the nervous system (including sensorineural hearing loss) are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As cardiovascular-renal disease (including hypertension) is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis for Service Connection The Veteran alleges that hypertension was first manifested on active duty, when a blood pressure reading of 168/64 was registered at separation. He reports he was able to keep his blood pressure under control for many years, until 2007, through the use of "garlic and primrose." The Veteran's service treatment records do not show any complaints or treatment for hypertension. At his separation examination in February 1966, the Veteran denied experiencing high blood pressure on his subjective report of medical history. His blood pressure was 114/68 upon evaluation and physical examination was normal. It appears the Veteran has misread the systolic pressure; there is a heavier pencil mark at the base of the second one in "114," but it is most definitely not a "6." VA treatment records show that the Veteran has been diagnosed with and treated for hypertension; the earliest available records documenting such treatment are dated in 2007. The Veteran was afforded a VA examination in May 2011. According to the examination report, the Veteran reported a history of hypertension beginning in 2007 or 2008, treated with medication. The Veteran denied a history of renal disease, stroke, or headaches associated with his hypertension. The Veteran also denied a history of cardiovascular disease associated with hypertension. Physical examination showed that the Veteran's blood pressure was 148/88. There was no evidence of congestive heart failure or pulmonary hypertension. Heart size was normal. The VA examiner found that it was less than likely that his hypertension was related to the Veteran's military service; the VA examiner noted that the Veteran's service treatment records and separation examination were negative for evidence of hypertension, and noted that his hypertension was first diagnosed nearly 40 years after his service. After a review of the evidence, the Board also finds that the evidence shows no in-service injury or disease related to his claimed hypertension, including no diagnosis of hypertension in service, and that symptoms of hypertension were not chronic in service. As previously discussed, the Veteran's service treatment records are negative for any complaints or treatment for hypertension. The Board next finds that the weight of the evidence demonstrates that symptoms of hypertension have not been continuous since service separation in February 1966. The evidence shows that the Veteran's hypertension first manifested many years after service, in 2007; notably, in the interim, he was not seen for any related complaints, and does not report a history of treatment for hypertension prior to 2007. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). The Board has also considered the more recent statements of the Veteran, attesting that he has a history of related symptoms since service, but finds that these recent assertions of the Veteran made for compensation purposes are not credible because the recent assertions are inconsistent with, and outweighed by, the other lay and medical evidence showing an absence of complaints or treatment for these claimed disorders after service, the Veteran's own histories made for treatment purposes prior to filing his 2009 claim for VA compensation, and the Veteran's own reported histories when seeking treatment in the intervening years. See Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005). Prior to the 2009 claim for VA compensation benefits, it is significant that the Veteran did not make any assertions that his hypertension occurred in service, or that he had continuous symptoms of hypertension since service, and he did not assert a link between his service and his symptoms or assert an in-service onset at that time. Significantly, the Board assigns probative value to the May 2011 VA examiner's opinion that the Veteran's hypertension was unrelated to his service. The VA examiner noted that the Veteran did not present with symptoms or a diagnosis of hypertension in service, and his in-service clinical evaluations showed a normal blood pressure. The VA examiner also noted that the Veteran's claims file did not indicate that he sought treatment prior to 2007. The Board finds that the weight of the lay and medical evidence of record demonstrates that the Veteran's hypertension had post-service onset and is not related to the Veteran's active service. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for hypertension. The benefit-of-the-doubt doctrine is therefore not for application with regard to the service connection claim decided herein. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Legal Criteria for an Increased Disability Evaluation Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Analysis for an Increased Disability Evaluation The Veteran's asthma currently is evaluated as 60 percent disabling pursuant to 38 C.F.R. § 4.97, Code 6602. Under this Code, a 60 percent evaluation is warranted for FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least 3 per year) courses of systemic corticosteroids. A 100 percent disability evaluation is assigned where there is FEV-1 of less than 40 percent predicted, FEV-1/FVC of less than 40 percent, or more than one attack per week with episodes of respiratory failure, or requires daily use of systemic high dose corticosteroids or immune-suppressive medications. 38 C.F.R. § 4.97, Code 6602. In reviewing the rating criteria in relation to the evidence for consideration, the Board finds that the Veteran's disability picture is most consistent with the currently assigned 60 percent disability evaluation. The objective clinical evidence of record, including the Veteran's most recent May 2011 VA examination report, demonstrates that the Veteran reported symptoms of wheezing, coughing, and shortness of breath, improved with medication. The Veteran reported the use of an inhaled bronchodilator and an anti-inflammatory medication on a daily basis; he denied the use of oral steroids, parenteral steroids, antibiotic use, and other immunosuppressives. He denied hospitalization, surgery, respiratory system trauma, and swelling; he also denied cardiac symptoms. Upon physical examination, his chest was clear to auscultation bilaterally and there was no evidence of abnormal breath sounds. Pulmonary function testing was FVC at 76 percent predicted, FEV-1 at 45 percent predicted, and FEV-1/FVC was 46 percent predicted. The VA examiner concluded that the Veteran's asthma was productive of a moderately obstructive ventilator impairment, with bronchodilator response. In addition, a November 2010 VA examination report indicates that the Veteran experiences exacerbations approximately once or twice per year. FEV-1 and FVC were 45 and 46, respectively. Therefore, the Board finds that the Veteran's symptomatology fits most closely within the criteria for the currently assigned 60 percent disability evaluation. The Board also considered the Veteran's statements that his asthma is worse and that he should be granted a higher rating based, in part, on his lay statements. To the extent that he contends that a higher rating should be assigned, the Board notes that in rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). Nonetheless, the absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, supra ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In this regard, the Board acknowledges that, according to the Veteran's various statements, his service-connected asthma has worsened. However, the VA examiners found that the Veteran's service-connected asthma was as previously characterized and was productive of no more than moderate effects on his activities of daily living. Although the Veteran is competent to report his symptoms, he is not, however, competent to identify a specific level of disability according to the appropriate diagnostic code. More competent evidence concerning the nature and extent of the Veteran's service-connected asthma was provided by the medical personnel who have examined him during the current appeal and who have rendered a pertinent opinion in conjunction with the evaluation; the Board notes that the VA treatment reports do not show that the Veteran's symptoms were worse than at the VA examinations during any part of the period on appeal. The medical findings (as provided in the examination reports and clinical findings) directly address the criteria under which these disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective evidence of complaints of increased symptomatology. Regardless, even resolving all doubt in his favor and concluding his shortness of breath is due to his asthma, versus his nonservice-connected chronic obstructive pulmonary disease (COPD), a higher rating still could not be assigned. The Board must follow the rating schedule which evaluates asthma on the results of pulmonary function tests (or other criteria as described above), but not on the frequency or severity of any shortness of breath. Finally, an extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that the schedular evaluation assigned for the Veteran's service-connected asthma is adequate in this case; the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected asthma, as the criteria more than address the Veteran's impairment. For instance, during the May 2011, he did not describe any unusual symptomatology, and reported instead that his respiratory symptoms had greatly improved with prescribed medication. In light of the above, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Legal Criteria for an Earlier Effective Date The additional payments based on the existence of dependents are provided in 38 U.S.C.A. § 1115. Effective October 1, 1978, Public Law 95-479 amended section 1115 to provide that additional compensation would be payable to veterans with a combined disability evaluation of 30 percent or more, to assist in the support of their dependent spouses and/or children. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance 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. Unless specifically provided, such determination is made on the basis of the facts found. 38 C.F.R. § 3.400(a). An award of additional compensation for dependents based on the establishment of a rating in the percentage specified by law for that purpose shall be payable from the effective date of such rating, but only if proof of dependents is received within one year from the date of such rating. 38 U.S.C.A. § 5110(f). Veterans having a 30 percent or more service-connected condition may be entitled to additional compensation for one or more dependents. 38 U.S.C.A. § 1115; 38 C.F.R. § 3.4(b)(2). Regarding additional compensation for dependents, the effective date will be the latest of the following dates: (1) date of claim; (2) date the dependency arises; (3) effective date of the qualifying disability rating, provided evidence of dependency is received within a year of notification of such rating action; or (4) date of commencement of the Veteran's award. 38 C.F.R. § 3.401(b). The earliest that the additional award of compensation for a dependent can occur is the first day of the month following the effective date. 38 C.F.R. § 3.31. Analysis for an Earlier Effective Date As noted above, the Veteran seeks retroactive benefits for the additional dependent allowance following the grant of increased disability evaluations of 30 percent and 60 percent for his service-connected asthma. He seeks those benefits effective from February 11, 1994, the date from which his 30 percent evaluation is now assigned and/or from October 7, 1996, the date from which his 60 percent disability rating is now assigned. In the present case, careful review of the record reveals that the Veteran first filed a claim to receive additional compensation for his dependent daughter on July 17, 2008. At that time, he submitted a completed VA Form 21-674, Request for Approval of School Attendance, as well as a birth certificate for his daughter, Sydney, and proof of her school attendance. Although the Veteran had previously been advised in a June 2001 letter, that he had been awarded a 30 percent evaluation for his asthma, effective February 11, 1994, and a 60 percent evaluation, effective October 7, 1996, and that he was being paid as a single Veteran without any dependents, there is no indication in the evidentiary record that he had filed an earlier claim and submitted dependency information; at that time, he was also informed that he was eligible to receive additional benefits for dependents, but again did not file a claim. Therefore, July 17, 2008, is the date of the claim. The Board has considered the Veteran's assertion in his Notice of Disagreement that he assumed that, upon the grant of increases to 30 percent and 60 percent and the award of retroactive pay to February 11, 1994 and October 7, 1996, that the award included his dependent daughter; he also asserted that he submitted all of the appropriate forms prior to the June 2001 rating decision. However, the record does not show that the Veteran submitted the requisite proof of dependents prior to or within one year after the June 2001 rating decision, or otherwise assert entitlement to dependency benefits. The evidence clearly shows that he did not provide the requisite documentary dependency evidence until July 17, 2008. The Veteran was advised by the RO of the above action by way of June 2001 correspondence mailed to him at his then current address of record. 38 U.S.C.A. § 3.1(q); see Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (VA need only mail notice to the last address of record for the presumption of regularity to attach). He was also advised in an enclosed VA Form 21-8764 (Disability Compensation Award Attachment - Important Information) that veterans having a service-connected condition rated 30 percent or more may be entitled to additional compensation for dependents and provided a VA Form 21-686c (Declaration of Status of Dependents). He was further advised to promptly advise VA of any change in the status of his dependents. The Veteran was being paid at the single rate, with no dependents, at that time. Nevertheless, the Veteran did not provide evidence of dependency within a year after the June 2001 letter. Instead, as stated above, he first provided evidence of dependency in July 2008, approximately five years later. Thus, entitlement to additional compensation benefits from the date of the qualifying disability rating is not available in this case because evidence of dependency was not received within one year of the June 2001 letter. In regard to the date of commencement of the Veteran's award, the Board notes that he began to receive his award of additional compensation benefits on August 1, 2008, which was the first day of the month following the filing of his dependency claim on July 17, 2008. Thus, the current effective date of August 1, 2008, for his receipt of the additional dependency allowance is proper. Because a preponderance of the evidence is against the claim for an earlier effective date, the Veteran's appeal must be denied. In making this determination, the Board has carefully considered the Veteran's assertion, as explained in his January 2009 NOD, that he did not file dependency information, after receiving the letter in 2001 advising him of the need to submit such dependency evidence, because he thought he was already getting the additional allowance. However, after receiving notice of the action and being advised that he was being paid as a single Veteran without dependence, but might be entitled to additional compensation dependents, and that he should notify VA of any change in the status of his dependents in the enclosed VA Form 21-8764 in June 2001, he did not file a dependency claim or provide the necessary dependency evidence for over seven years. Consequently, the Veteran is not entitled to an earlier effective date under applicable VA law and regulation. In reaching the above conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), any reasonable doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against this claim, and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hypertension is denied. Entitlement to a disability rating in excess of 60 percent for asthma is denied. Entitlement to an effective date prior to August 1, 2008 for the addition of a school age child as a dependent is denied. REMAND In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans Claims held that a TDIU claim is part of an increased rating claim when such claim is reasonably raised by the record. In this case, the Veteran filed a claim of entitlement to a TDIU, which was denied by the RO in August 2011. However, the Veteran has continued to allege that his service-connected disabilities, including his anxiety disorder, preclude him from obtaining or maintaining gainful employment. As such, the TDIU claim remains part and parcel of the anxiety disorder rating claim. The Board notes that the issue of entitlement to TDIU is inextricably intertwined with the Veteran's claim of entitlement to an increased disability evaluation, currently on appeal. See, e.g., Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Moreover, the Veteran contends that his service-connected anxiety disorder is worse than currently evaluated. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994), and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The Board acknowledges that the Veteran was afforded a VA examination in November 2008, in connection with his claim for service connection, and that a copy of that examination report is associated with his claims file. Nevertheless, the Veteran's representative indicated that the Veteran's anxiety symptoms have continued to worsen; the Veteran, by means of his VA Form 9 and multiple written statements, continues to assert that his current symptoms are more severe than presently evaluated. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a veteran is entitled to a new examination after a two-year period between the last VA examination and the veteran's contention that the pertinent disability had increased in severity). The Court has also determined that the fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination, one that takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Additionally, since it is necessary to remand these claims, any more recent VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a notice letter pertaining to a claim for entitlement to TDIU, to include a description of the evidence necessary to substantiate a claim for TDIU, the Veteran's duties to substantiate the record, and VA's duties. Allow for a reasonable period to respond. 2. If the Veteran has received any mental health treatment at the VA in St. Petersburg, obtain these records. 3. Schedule the Veteran for a VA psychiatric examination to ascertain the current severity and manifestations of his service-connected anxiety disorder. The claims file should be made available to the examiner for review in connection with the examination. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. 4. When the development requested has been completed, the case should again be reviewed by the RO/AMC, with application of all appropriate laws and regulations, and consideration of all additional information obtained since issuance of the September 2009 statement of the case, including any evidence obtained as a result of this remand. If the claims remain denied, the appellant and his representative, if any, should be furnished a SSOC and afforded a reasonable period of time within which to respond thereto. Thereafter, the case should be returned to the Board, as appropriate. The purpose of this remand is to further develop the record and afford due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs