Citation Nr: 1322843 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 04-34 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a skin disability, to include tinea capititis, psoriasis, tinea pedis, and a rash on the feet. 2. Entitlement to service connection for a disability claimed as vertigo. 3. Entitlement to service connection for an upper respiratory disability to include sinusitis, allergic rhinitis, and upper respiratory infection. 4. Entitlement to service connection for a gastrointestinal disability, to include peptic ulcer disease, cholecystitis, and gastroesophageal reflux disease (GERD). 5. Entitlement to a disability rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) with dysthymic disorder. 6. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) prior to March 10, 2009. 7. Entitlement to an initial rating in excess of 10 percent for tinnitus. 8. Entitlement to an initial compensable rating for bilateral hearing loss. 9. Entitlement to an initial compensable rating for hypertension. 10. Entitlement to an effective date prior to April 16, 2001, for the award of service connection for hypertension. 11. Entitlement to an effective date prior to August 18, 2003, for the award of service connection for bilateral hearing loss. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), this appeal has been advanced on the Board's docket. The Veteran's active military service extended from March 1971 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The issue involving service connection for a skin disability, to include tinea capititis, psoriasis, tinea pedis, and a rash on the feet was denied in an April 1996 RO rating decision. An April 2004 rating decision denied service connection for, in pertinent part, vertigo, a gastrointestinal disability, upper respiratory infection, sinusitis, and allergic rhinitis. The April 2004 rating decision also granted service connection for PTSD and assigned a 50 percent disability rating effective April 8, 1996, the date of service connection. The Veteran disagreed with the initial disability rating. A January 2005 rating decision denied entitlement to TDIU. In a July 2012 decision, the Board, in pertinent part, remanded a number of issues for additional development. The Board also granted service connection for bilateral hearing loss, tinnitus, and hypertension. In a July 2012 rating decision, the RO implemented these awards. The Veteran subsequently submitted a notice of disagreement with the initial ratings and effective dates of the awards of service connection for hypertension and hearing loss, and with the initial rating for tinnitus. Thus, the issues of entitlement to an initial rating in excess of 10 percent for tinnitus; an initial compensable rating for bilateral hearing loss; an initial compensable rating for hypertension an effective date prior to April 16, 2001, for the award of service connection for hypertension; and an effective date prior to August 18, 2003, for the award of service connection for bilateral hearing loss are currently before the Board. See Manlincon v. West, 12 Vet. App. 238 (1999). In a March 2013 rating decision, the RO granted service connection for otitis and pes planus (claimed as Achilles tendonitis). The RO also increased the initial rating for PTSD with dysthymic disorder to 70 percent. The issues of entitlement to an initial rating in excess of 10 percent for tinnitus; an initial compensable rating for bilateral hearing loss; an initial compensable rating for hypertension and an effective date prior to April 16, 2001, for the award of service connection for hypertension; an effective date prior to August 18, 2003, for the award of service connection for bilateral hearing loss, and entitlement to TDIU prior to March 10, 2009, 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. A chronic skin disability did not have its onset in service and was not caused or aggravated by service or a service-connected disability; psoriasis and onychomycosis were first demonstrated more than 15 years after separation from service. 2. The Veteran does not currently have vertigo. 3. A chronic upper respiratory disability did not have its onset in service and was not caused or aggravated by service. 4. A chronic gastrointestinal disability did not have its onset in service and was not caused or aggravated by service. 5. Through the appeal, the Veteran's PTSD with dysthymic disorder has not resulted in virtual isolation in the community, totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, or demonstrable inability to obtain or retain employment; it has not been manifested by total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria for service connection for vertigo have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2012). 3. The criteria for service connection for an upper respiratory disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2012). 4. The criteria for service connection for a gastrointestinal disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2012). 5. The criteria for a rating in excess of 70 percent for PTSD with dysthymic disorder have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.130, Diagnostic Code 9411 (1996 and 2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The Veteran's claims and the resulting appeal have taken over a decade to reach the Board. The Veteran has been provided notice with respect to the issues on appeal in letters dated: November 2003, March 2004, March 2006, and January 2009. The letters advised the Veteran of the elements required to establish entitlement to service connection, including the disability-rating and effective-date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The letters advised the Veteran of the elements required to establish entitlement to increased rating, including the impact of the disabilities on daily life and occupational functioning. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claims were subsequently readjudicated, most recently in a March 2013 supplemental statement of the case. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. at 490-91 (2006). Accordingly, once service connection was granted and ratings and effective dates were assigned section 5103(a) notice was no longer required with respect to the issues involving the initial disability rating assigned for PTSD. VA has obtained service treatment records; VA treatment records; private medical records; records from the Social Security Administration (SSA); VA examination reports; assisted the Veteran in obtaining evidence; and, afforded him the opportunity to present testimony, statements and evidence. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file and he has not contended otherwise. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Accordingly, the appellant is not prejudiced by a decision at this time. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, commonly referred to as direct service connection; or for aggravation of preexisting injury suffered or disease contracted in the line of duty, commonly referred to as a claim for aggravation. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Peptic ulcer disease is a chronic condition listed under 38 C.F.R. § 3.303(b); as such, 38 C.F.R. § 3.303(b) is applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In contrast, the issues of service connection for skin disability, vertigo, upper respiratory disability, and other gastrointestinal disabilities are not chronic conditions under 38 C.F.R. § 3.303(b) and will be adjudicated using the general principles of service connection. Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection is warranted for a disability which is aggravated by, proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2002). Any additional impairment of earning capacity resulting from a service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, also warrants compensation. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition is considered a part of the original condition. Id. If a veteran was exposed to an herbicide agent (Agent Orange) during active service, presumptive service connection is warranted for the following disorders: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; type 2 diabetes; Hodgkin's disease; Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); All chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; Non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and, soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). Presumptive service connection for these disorders as a result of Agent Orange exposure is warranted if the requirements of Sec. 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). A "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f). The evidence establishes that the Veteran served in combat in Vietnam during the requisite period of time. The Veteran is therefore presumed to have been exposed to Agent Orange during service. The specified diseases may be presumed to have been incurred during active military service as a result of exposure to Agent Orange if they become manifest to a degree of 10 percent any time after service, with the exception of Chloracne, or other acneform disease, porphyria cutanea tarda, and peripheral neuropathy which must become manifest within the first year after the last date on which the veteran was exposed to Agent Orange during active service. 38 C.F.R. § 3.307(a)(6)(ii). If the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are not satisfied, then the veteran's claim shall fail. 38 U.S.C.A. § 1113 (West 2002); 38 C.F.R. § 3.307(d), (2002). A presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for: hepatobiliary cancers; oral, nasal, and pharyngeal cancer; bone and joint cancer; skin cancers (melanoma, basal, and squamous cell); breast cancer; female reproductive system cancer (cervix, uterus, ovary); testicular cancer; urinary bladder cancer; renal cancer; leukemia (other than chronic lymphocytic leukemia); abnormal sperm characteristics and infertility; spontaneous abortion; neonatal or infant death and stillbirth in offspring of exposed individuals; low birthweight in offspring of exposed individuals; birth defects (other than spina bifida) in offspring of exposed individuals; childhood cancer (including acute myelogenous leukemia) in offspring of exposed individuals; neurobehavioral disorders (cognitive and neuropsychiatric); movement disorders, including amyotrophic lateral sclerosis; chronic peripheral nervous system disorders; respiratory disorders; gastrointestinal, metabolic, and digestive disorders (changes in liver enzymes, lipid abnormalities, ulcers); immune system disorders (immune suppression, autoimmunity); circulatory disorders; amyloid light-chain amyloidosis; endometriosis; and effects of thyroid homeostasis; gastrointestinal tumors (esophagus, stomach, pancreas, colon, rectum); and brain tumors. See Notice, 72 Fed.Reg. 32395-407 (June 12, 2007); See also Notice, 68 Fed.Reg. 27630-27641 (May 20, 2003); See also Notice, 67 Fed. Reg. 42600 (June 24, 2002); Notice, 66 Fed. Reg. 2376 (Jan. 11, 2001); Notice, 64 Fed.Reg. 59232 (November. 2, 1999). Notwithstanding the foregoing, a veteran is not precluded from establishing service connection for a disability with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Skin Disabilities The service treatment records show that in May 1971 the Veteran reported a rash on the bearded portion of his face. Pseudofolliculitis was noted. In December 1971 the Veteran was seen with complaints of a shaving rash. None was present on examination at the time. In January 1972 he reported that his face had been breaking out. Pseudofolliculitis was noted and he was advised to not shave for one week. The Veteran was seen with complaints of a rash on his penis in November 1971, October 1972, and November 1972. In August 1972 he was seen with mild athlete's foot. No other skin complaints were noted in service. In April 1973 he was seen with possible seborrheic dermatitis of the scalp. In May 1975 a physical examination noted that the Veteran's skin was unremarkable. Tinea pedis was noted in September 1985 and June 1988. A March 1986 VA treatment record noted a dry, macular rash on the Veteran's neck. A March 1989 private physician's statement noted that the Veteran had been treated in January 1989 for tinea capititis. An August 1989 VA record noted that the Veteran reported a history of skin rash beginning in Vietnam after he was exposed to Agent Orange. "He does not know if it is related to anything except probably Agent Orange." Also in August 1989 diagnoses of psoriasis and tinea pedis with onychomycosis were noted. In January 1990 the Veteran was seen with rash on his arms and legs. Tinea pedis and lichen simplex were noted. A VA general medical examination in March 1992 noted a diagnosis of minor psoriasis. A February 1996 private physician's statement noted the Veteran had been seen with psoriasis. In February 1997 the Veteran was seen with psoriasis, which he reported had been present for approximately 20 years. In May 1997 he was seen with dermatitis of the lower extremities. In June 1998 the Veteran was seen with chronic psoriasis on his arms, legs, and stomach. In February 2002 the Veteran reported that he had a skin rash that had been present for many years and had recently been diagnosed as psoriasis. The Veteran believed the rash was secondary to exposure to chemicals in Vietnam. A December 2002 VA treatment record noted that the Veteran had a skin rash on the arms and legs. "His skin rash could be secondary to Agent Orange exposure." VA examination in November 2004 noted psoriasis, which the Veteran reported had been present since the 1970s. Psoriasis vulgaris was noted in November 2007. On VA skin examination in August 2012, the examiner diagnosed onychomycosis of the toe nails, and psoriasis. No other skin conditions were present. After reviewing the claims file, the examiner stated that it was less than likely that the psoriatic condition was related to or occurred during military service. The examiner noted that the service treatment records did not include any diagnosis of psoriasis, and that psoriasis was first diagnosed in 1989. "The condition is very distinctive in presentation and had the condition been present in service, it is more than likely to be diagnosed. Therefore it is less likely the psoriatic condition occurred during military service." The examiner also stated that it was less than likely that the onychomycosis of the Veteran's toenails was related to or occurred during military service; he noted that the service treatment records showed no treatment or diagnosis of nail infection or any showing of dystrophy, thickening or discoloration of the nails. The examiner noted that the record showed onychomycosis was first diagnosed in 1989, well after military separation. The examiner also opined that it was less than likely that either psoriasis or onychomycosis was related to Agent Orange exposure, citing a National Research Council study. Finally, the examiner found it less than likely that psoriasis or onychomycosis was caused or aggravated by any service connected disability, noting that neither condition was a known symptom of the Veteran's service connected disabilities including PTSD and coronary artery disease. Tinea capititis was identified on one occasion in 1989 but is not currently shown. Tinea pedis was noted on one occasion during service and once in 1989 but is not currently shown. As tinea pedis and tinea capititis have not been shown to be present at any time during the appeals period, service connection for those conditions is not warranted. The initial diagnoses of psoriasis and onychomycosis were made in 1989, over a decade after the Veteran separated from service. Importantly, the record contains findings related to other skin complaints prior to 1989, however psoriasis and onychomycosis were not identified prior to that date. The August 2012 VA examiner noted that psoriasis was very distinctive in presentation, and thus it would be expected to be diagnosed if present. There is no evidence that psoriasis or onychomycosis manifested during service. Neither psoriasis nor onychomycosis is a disability which warrants service connection on a presumptive basis due to Agent Orange exposure during service. There is no credible medical evidence linking either disability to Agent Orange exposure. The August 1989 VA treatment record merely referred to the Veteran's belief that his skin rash was related to Agent Orange exposure, while the statement in the December 2002 VA treatment record that "his skin rash could be secondary to Agent Orange exposure" is speculative and contains no rationale or support. In contrast, the August 2012 VA examiner provided a sound rationale for his conclusion that the disabilities were not related to Agent Orange exposure, citing a National Research Council study. The only medical opinion of record that addresses the relationship, if any, of the Veteran's psoriasis and/or onychomycosis and his service-connected disabilities determined that there was no relationship. The Veteran is competent to report that he had skin rashes in service and thereafter, however he is not competent to diagnosis the conditions or to state whether the currently diagnosed psoriasis or onychomycosis are related to an inservice cause. The preponderance of the evidence is against the claim for service connection for a skin disability. There is no doubt to be resolved; and service connection is not warranted. Vertigo The service treatment records do not show any complaints or findings related to vertigo. In November 1978 the Veteran was hospitalized with a sudden onset of dizziness, etiology unknown. In December 1989 he was seen with dizzy feelings. In July 1991 he was seen with complaints of dizzy spells for several days. The impression was dizziness- possible vertigo. In August 1991 his vertigo was noted to have resolved. In October 1991 he was noted to have no further dizziness. In December 1995 he was seen with complaints of a three day history of dizziness. The impression was vertigo. On VA examination in August 2012, the examiner noted that the Veteran first experienced dizziness in 1978 and had last had vertigo in 1995. The examiner noted that the Veteran had not had a dizzy spell since 1995. To the extent that the Veteran believes he has vertigo, the Board notes that a symptom without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez, 13 Vet. App. at 285. Although the Veteran is competent to report symptoms such as dizziness, a disability is required in order to establish service connection. Brammer, 3 Vet. App. at 225; see Barr v. Nicholson, 21 Vet. App. 303 (2007). The medical record shows that vertigo was last noted in 1995 and the August 2012 VA examiner specifically noted that it had not been present at any time since. Therefore, in the absence of evidence of diagnosed vertigo at any time during the appeals period, the preponderance of evidence is against service connection. 38 U.S.C.A. § 5107(b). Upper Respiratory Disabilities The service treatment records show that the Veteran was seen with a cold in December 1971. In August 1972 he was seen with upper respiratory infection with sinus drainage. In May 1975, physical examination noted the Veteran had occasional colds. Examination showed no shortness of breath and no nasal obstructions. He was treated for a viral upper respiratory infection in December 1977. He was again treated for upper respiratory infection in December 1978 and January 1979. An October 1989 chest X-ray noted mild chronic obstructive pulmonary disease (COPD). Chest X-rays in August 1990, March 1995, September 1996, and February 1997 found no evidence of active cardiopulmonary disease. In January 1998 X-ray showed parabronchial bronchitis or bronchial pneumonia depending on clinical correlation. A January 2003 X-ray showed no active disease. March 2009 and March 2012 X-rays again showed no active disease. Pulmonary function testing in August 2012 showed mild obstructive ventilatory impairment. On VA examination in August 2012 the Veteran denied a current lung condition. The examiner diagnosed right maxillary sinus cyst, allergic rhinitis, and mild obstructive lung disease. The examiner stated that it was less than likely that the maxillary sinus cyst, allergic rhinitis, or mild obstructive lung disease had their onset in service or were related to conditions treated during service. He noted that sinus cyst was an incidental finding likely related to previous trauma and history of allergic rhinitis; that no chronic rhinitis condition was noted during service; and that the obstructive condition shown on current pulmonary function testing was an incidental and new finding that was less than likely to have had its onset during active service. The examiner noted that the October 1989 X-ray findings were not substantiated by subsequent radiographic studies. A chronic upper respiratory disability was not shown during service. The only competent medical evidence of record addressing whether the currently diagnosed maxillary sinus cyst, allergic rhinitis, or mild obstructive lung disease were related to the Veteran's period of active service determined that they were not. The August 2012 VA examiner specifically stated that the intermittent upper respiratory complaints noted after service, with normal X-rays, were temporary conditions with infectious etiology and resolution. He also opined that the currently shown maxillary cyst was unrelated to the inservice notation of sinus drainage. Maxillary sinus cyst, allergic rhinitis, and mild obstructive lung disease are not disabilities which warrant service connection on a presumptive basis due to Agent Orange exposure during service; nor is there any credible evidence linking these disabilities to any such exposure. The Veteran is competent to report that he has had colds during and after service; however he is not competent to diagnosis a chronic condition or to state whether the currently diagnosed upper respiratory findings are related to an inservice cause. The Veteran himself has denied on the August 2012 VA examination that he has any chronic lung disability. The preponderance of the evidence is against the claim for service connection for an upper respiratory disability. There is no doubt to be resolved; and service connection is not warranted. Gastrointestinal Disabilities The service treatment records do not note any gastrointestinal complaints or findings. In May 1975, physical examination noted the Veteran had a good appetite, normal bowel movements, and no melena or hematemesis ever. Irritable bowel syndrome was noted in March 1978. In August 1978 he reported abdominal pain and cramping for three days. In November 1978 the Veteran reported abdominal pain on and off for several months. Upper gastrointestinal series showed irritability of the duodenum without evidence of active ulcer disease. "This may be due to peptic ulcer disease." Hyperacidity of the stomach was diagnosed. In August 1985 the Veteran was seen with complaints of stomach hurting for the past three to four weeks. An upper gastrointestinal series was recommended. Upper gastrointestinal series testing in 1985, 1990, 1991, and 1992 found no significant pathology. In November 1985 the Veteran reported abdominal pain after drinking post-dated orange juice. In August 1990 he was seen with possible cholecystitis versus peptic ulcer disease. Possible gastritis versus peptic ulcer disease was noted in April 1991. Upper gastrointestinal series in March 2002 found no appreciable reflux. A VA examination was conducted in August 2012. Upper gastrointestinal series showed mild episodes of gastroesophageal reflux. Sonogram of gallbladder was normal. The examiner noted that the Veteran's peptic ulcer disease noted in 1978 was a temporary condition, with no evidence of current disease on upper gastrointestinal series. He also stated that the Veteran's currently demonstrated mild GERD and fatty liver infiltration were less than likely related to or occurred during service. The examiner specifically noted the upper gastrointestinal series conducted in 1985, 1990, 1991, and 1992 that did not demonstrate any significant pathology. Thus, he concluded the GERD and fatty liver infiltration were new conditions. The examiner also opined that it was less than likely that GERD or fatty liver infiltration were related to or caused by a service connected condition or medication used in treatment of such condition. The fatty liver infiltration was attributed to increased body mass index and hyperlipidemia. The examiner specifically noted that while fatty liver infiltration could be a complication of diabetes mellitus, that the Veteran's diabetes mellitus was well controlled, suggesting another etiology. Cholecystitis was suspected in 1990 but never confirmed, and that condition is not currently demonstrated. Peptic ulcer disease was noted in 1978 but has not been shown by upper gastrointestinal series beginning in 1985 up to the present. The VA examination in August 2012 stated that peptic ulcer disease was not present. As cholecystitis and peptic ulcer disease have not been shown to be present at any time during the appeals period, service connection for those conditions is not warranted. The initial diagnoses of GERD and fatty liver infiltration were made in 2012, decades after the Veteran separated from service. These conditions were not identified on multiple upper gastrointestinal series from 1985 to date. The August 2012 VA examiner noted that these were new conditions. There is no evidence that GERD and fatty liver infiltration manifested during service. Neither GERD nor fatty liver infiltration is a disability which warrants service connection on a presumptive basis due to Agent Orange exposure during service. There is no credible medical evidence linking either disability to Agent Orange exposure. The only medical opinion of record that addresses the relationship, if any, of the Veteran's GERD and fatty liver infiltration and his service-connected disabilities determined that there was no relationship. The Veteran is competent to report that he had gastrointestinal problems in service and thereafter, however he is not competent to diagnosis the conditions or to state whether the currently diagnosed GERD or fatty liver infiltration is related to an inservice cause. The preponderance of the evidence is against the claim for service connection for a gastrointestinal disability. There is no doubt to be resolved; and service connection is not warranted. Increased Rating for PTSD Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Service connection for PTSD with dysthymic disorder was granted in an April 2004 rating decision, and a 50 percent initial rating was assigned from April 1996, the date of claim. The Veteran disagreed with the initial rating. In a March 2013 rating decision, the RO granted an initial 70 percent rating for PTSD with dysthymic disorder, also from April 1996. The criteria for rating mental disorders were amended effective November 7, 1996; the November 1996 formula remains in effect. See 61 Fed. Reg. 52695 (Oct. 8, 1996) (amending the sections of the VA schedule for rating mental disorders); see also 38 C.F.R. § 4.130 (general rating formula for mental disorders) (2012). As such, the Veteran's claim must be considered under both sets of criteria. Under the criteria in effect prior to November 7, 1996, a 70 percent evaluation required severe impairment in the ability to establish and maintain effective or favorable relationships with people; the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent evaluation required virtual isolation in the community, totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, or demonstrable inability to obtain or retain employment. Further, the Court held that these criteria provide three independent bases for granting a 100 percent disability evaluation. See Johnson v. Brown, 7 Vet. App. 95, 97 (1994). In addition, 38 C.F.R. § 4.16(c) stated that in cases where a mental disorder was assigned a 70 percent evaluation, and such mental disorder precluded a Veteran from securing or following a substantially gainful occupation, in such cases, the mental disorder shall be assigned a 100 percent schedular evaluation under the appropriate diagnostic code. See 54 Fed. Reg. 4280-01 (Jan. 30, 1989). 38 C.F.R. § 4.16(c) (1996) was repealed when the revised criteria for rating psychiatric disabilities became effective on November 7, 1996. 61 Fed. Reg. 52695 (Oct. 8, 1996). Under the schedular criteria in effect prior to November 7, 1996, where the Veteran's mental disorder was assigned a 70 percent evaluation and that mental disorder precluded a Veteran from securing or following a substantially gainful occupation, regardless of whether the Veteran had other compensable service-connected disabilities, the mental disorder must be assigned a 100 percent evaluation under the appropriate diagnostic code. Johnson v. Brown, 7 Vet. App. 97. Under the rating criteria that became effective November 7, 1996, a 70 evaluation requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships. Finally, a 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) (West 2002) can be no earlier than the effective date of that change. The Board must apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim pursuant to the former and revised regulations during the course of this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). The Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). A GAF Score of 41 to 50 contemplates serious systems (e.g., suicidal ideation severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 51 to 60 is defined as indicating 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). A score of 61 to 70 is defined as indicating some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning but generally functioning pretty well, has some meaningful interpersonal relationships. A GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. On VA examination in May 1996 the Veteran reported that he had no interest in making friends and stayed by himself almost all the time. on examination he was alert and oriented. Affect was rather restricted but primarily angry and mood was passively hostile. Insight and judgment were poor at best. Immediate memory was pretty good. the Veteran denied hallucinations to a specific degree. The diagnosis was deferred due to inadequate information, with the examiner noting that the Veteran's responses to psychological testing appeared invalid. The GAF score was 55. VA examination in April 1998 noted the Veteran was alert and oriented. Memory was intact and speech was logical and goal-directed. There was no evidence of impairment of thought process, and no delusions or hallucinations. The Veteran did not meet the full criteria for a diagnosis of PTSD. The diagnosis was depressive disorder not otherwise specified. The GAF score was 65. May 1999 and August 1999 outpatient treatment records noted GAF scores of 55. On VA examination in January 2004 the examiner noted that the Veteran's current psychosocial functional status was mildly impaired in regard to employment and moderately impaired in regard to social and interpersonal relationships. The Veteran did not demonstrate any impairment of thought process or communication during the interview. He did not report any suicidal or homicidal thoughts or plans. He was able to maintain minimal personal hygiene and activities of daily living. He was oriented times four, but called the present season "fall." There was moderate short term memory impairment and mild long term memory impairment. He reported impaired impulse control and became angry on the road. The examiner diagnosed PTSD and dysthymic disorder. The GAF score was 65. A SSA disability evaluation mental status examination was conducted in December 2004. The Veteran's thinking was intact, logical, and coherent. Circumstantial and tangential thought was not present. He was oriented to person, place, time, and situation. He had no problem carrying on a conversation. Short term memory was intact. Intermediate memory was impaired. Concentration was marginal. Social interaction was poor. On VA examination in May 2007, the Veteran reported that he had last worked in 2004 at a casino. He was unable to say whether he had missed any work due to PTSD symptoms. The Veteran reported that he was not now in any sort of mental health treatment. The Veteran reported that he had a relationship with one of his children, and that he currently had a "lady friend" that he occasionally sees. On examination, his thought processes were logical, coherent, and relevant. He was interactive, articulate, verbal, well-dressed, and well-groomed. He seemed intelligent, and his speech was well-understood. The Veteran was well oriented to time, place, person, and situation. His affect was within normal limits. His performance on memory testing was good. The Veteran reported getting into fights and stated that he had paranoia and auditory hallucinations. He reported homicidal ideas. The examiner was skeptical that the Veteran had PTSD and noted that his MMPI testing showed an extremely exaggerated response set, literally off the profile. The GAF score for PTSD was 65. The examiner stated that the Veteran also had an impulse control disorder not related to PTSD. The examiner did not see a dysthymic disorder, and did not see any indication of unemployability related to any sort of service connected mental disability. On VA examination in August 2012 the examiner noted that the Veteran had occupational and social impairment with reduced reliability and productivity. He had difficulty in establishing and maintaining effective work and social relationships. He had mild memory loss, impaired judgment, depressed mood, chronic sleep impairment, anxiety, and suspiciousness. There was impaired impulse control and neglect of personal appearance and hygiene. The Veteran reported having a relationship with one of his children but stated that he mainly avoided people. The Veteran reported that he had last worked as a security guard at a casino and had left due to physical impairments affecting his ability to stand for long periods. When asked how his mental health issues affected his work, the Veteran kept talking about physical problems. He did report that he had been irritable at work and had problems with hypervigilance and fear for his safety. The examiner stated that it was less likely than not that the Veteran was unemployable due to mental health symptoms. The examiner specifically noted that his psychiatric symptoms would result in reduced reliability and productivity but would not prevent the Veteran from working. On examination, the Veteran was disheveled but had fair hygiene. He was verbal and superficially cooperative, but very focused on physical health issues. Thought process was generally logical but with some obsessive tendencies regarding his physical health. The examiner assigned a GAF Score of 45 based on PTSD symptoms. Considering the criteria in effect prior to November 1996, the Veteran's service connected PTSD with dysthymic disorder has not been shown to result in virtual isolation in the community, totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, or demonstrable inability to obtain or retain employment. The January 2004 VA examiner described moderate impairment in regard to social and interpersonal relationships. While the psychiatric evaluations of record have shown that the Veteran keeps to himself and does not make friends, he has consistently been shown to have a relationship with one of his children, and he reported that he had a girlfriend on the May 2007 examination. These findings do not reflect virtual isolation in the community. The examination results have not shown totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality. In fact, the Veteran has consistently been shown to be fully oriented, with logical speech, and his GAF scores, which have ranged from 45 to 65, have not been consistent with total incapacity. The mental health findings have likewise not shown demonstrable inability to obtain or retain employment due to PTSD with dysthymic disorder. The May 2007 and August 2012 VA examiners both explicitly found that the Veteran was not unemployable due to his mental health symptoms. Thus, a 100 percent schedular rating is not warranted under the pre-November 1996 criteria. The evidence of record does not show that the Veteran meets the criteria for a 100 percent rating under the current schedular criteria. There is no showing of total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The Veteran's thought processes and communication have been consistently at least adequate, and persistent delusions or hallucinations have not been shown. His hygiene has varied, but he has always been able to perform activities of daily living. While some memory impairment has been occasionally demonstrated, the Veteran has always been fully oriented. The Veteran's assigned GAF scores of 45 to 65 reflect symptom levels ranging from mild to moderate to serious, but do not support a 100 percent rating, which contemplates total occupational and social impairment. The Board has also considered whether the record raises the matter of extraschedular ratings under 38 C.F.R. § 3.321(b)(1). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability. His occupational impairment is contemplated by the criteria set forth in Diagnostic Code 9411. Moreover, there are no other indicia of an exceptional or unusual disability picture, such as marked interference with employment beyond that contemplated by the criteria set forth in Diagnostic Code 9411, or frequent periods of hospitalization. As such, referral for extraschedular consideration is not warranted. The weight of the evidence demonstrates that the Veteran's PTSD with dysthymic disorder is no more than 70 percent disabling under Diagnostic Code 9411 for the entire appeals period. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a skin disability, to include tinea capititis, psoriasis, tinea pedis, and a rash on the feet, is denied. Service connection for a disability claimed as vertigo is denied. Service connection for an upper respiratory disability to include sinusitis, allergic rhinitis, and upper respiratory infection is denied. Service connection for a gastrointestinal disability, to include peptic ulcer disease, cholecystitis, and gastroesophageal reflux disease (GERD), is denied. A disability rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) with dysthymic disorder is denied. REMAND In a July 2012 rating decision, the RO assigned initial ratings and effective dates for the awards of service connection for hypertension, bilateral hearing loss, and tinnitus. In September 2012 the Veteran submitted a notice of disagreement with the initial ratings and effective dates of the awards of service connection for hypertension and bilateral hearing loss, and with the initial rating for tinnitus. The RO was then obligated to furnish him a statement of the case (SOC), regarding the issues of higher ratings and EEDs. This has not been done. See 38 C.F.R. § 19.26. Thus, these claims must be remanded for issuance of a SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). The Veteran contends that he is unable to work due to his service connected disabilities. He is in receipt of a 100 percent combined schedular rating from March 10, 2009, however the issue of entitlement to TDIU prior to that date remains before the Board. As the claim for TDIU is dependent upon the degree of impairment from service-connected disabilities, the appeal cannot be resolved until there is a resolution of proper ratings and effective dates of the service connected disabilities. Remand of the inextricably intertwined TDIU claim is required as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case (SOC) regarding the issues of entitlement to an initial rating in excess of 10 percent for tinnitus; an initial compensable rating for bilateral hearing loss; an initial compensable rating for hypertension and an effective date prior to April 16, 2001, for the award of service connection for hypertension; and an effective date prior to August 18, 2003, for the award of service connection for bilateral hearing loss. The issues should be certified to the Board only if a timely Form 9 substantive appeal is received. 2. If the Veteran perfects his appeal with respect to any issue addressed in paragraph 1, arrange for any additional development indicated as related to the inextricably intertwined issue of entitlement to TDIU prior to March 10, 2009. Then, readjudicate that issue. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs