Citation Nr: 1324136 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 08-30 068A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for left ankle disability, and, if so, whether service connection is warranted. 2. Entitlement to service connection for bilateral foot disorders including fallen arches with plantar fasciitis and sinus tarsi syndrome. 3. Entitlement to an increased disability rating for post-traumatic stress disorder (PTSD), currently rated as 50 percent disabling. 4. Entitlement to an increased disability rating for left elbow disability, currently rated as 10 percent disabling. 5. Entitlement to an increased disability rating for right elbow disability, currently rated as 10 percent disabling. 6. Entitlement to an effective date earlier than December 1, 2004, for the assignment of a 50 percent disability rating for PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1969, and from September 1973 to October 1991. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by United States Department of Veterans Affairs (VA) Regional Offices (ROs). With respect to the claimed left ankle disability, in an October 2007 rating decision the RO denied reopening of a previously denied claim for service connection for left ankle disability. With respect to the claimed foot disorders, in a July 2000 rating decision the RO denied service connection for fallen arches with plantar fasciitis and sinus tarsi syndrome. With respect to PTSD, in a June 1997 rating decision the RO granted service connection, effective June 29, 1995, for PTSD, and assigned a disability rating of 0 percent. In the July 2000 rating decision the RO continued the 0 percent rating for PTSD. In a June 2005 rating decision the RO increased the disability rating for PTSD from 0 percent to 10 percent effective in December 2004. In the October 2007 rating decision the RO increased the disability rating for PTSD to 50 percent effective in December 2004. The effective date decision below focuses on the record as it now stands and the claim that is before the Board at this time. At the 2013 hearing it was discussed that the Veteran would consult with his representative as to whether to file claims that prior rating decisions were erroneous. As of now, such a claim is not before the Board, and any future decisions may, if in the Veteran's favor, revise the effective date and/or the ratings for the Veteran's PTSD back even further, but the Board can only look at the record that has been developed for appellate review, and that record now reflects finality of the 1997 and 2000 rating decisions that addressed PTSD. With respect to the elbow disabilities, in the June 2005 rating decision the RO increased the ratings for left and right elbow disabilities to 10 percent each effective in December 2004. The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. The issue of service connection for bilateral foot disorders including fallen arches with plantar fasciitis and sinus tarsi syndrome is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran did not perfect an appeal of a July 2000 rating decision denying reopening of a previously denied claim for service connection for left ankle disability. No new and material evidence was received within the appeal period, and no additional service department records were received after that rating decision. 2. Evidence received since the July 2000 rating decision denying reopening of a previously denied claim for service connection for left ankle disability addresses continuity of left ankle symptomatology during and after service and post-service diagnosis of left ankle disorders and raises a reasonable possibility of substantiating a claim for service connection for left ankle disability. 3. Chronic left ankle pain began during service and continued after service; post-service imaging showed left ankle arthritis. 4. In May 2013, prior to promulgation of a decision in the appeal for a disability rating higher than 50 percent for PTSD, the Veteran communicated that he wished to withdraw that appeal. 5. In May 2013, prior to promulgation of a decision in the appeal for a disability rating higher than 10 percent for left elbow disability, the Veteran communicated that he wished to withdraw that appeal. 6. In May 2013, prior to promulgation of a decision in the appeal for a disability rating higher than 10 percent for right elbow disability, the Veteran communicated that he wished to withdraw that appeal. 7. On March 29, 2002, the RO received a claim for an increase for PTSD. All claims prior to that date were the subjects of final rating decisions. 8. From January 15, 2002, it was factually ascertainable the Veteran's PTSD caused occupational and social impairment including difficulty establishing and maintaining effective social relationships. CONCLUSIONS OF LAW 1. A July 2000 rating decision denying reopening of a previously denied claim for service connection for left ankle disability is a final decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.302, 20.303, 20.1103 (2012). 2. Evidence received since the July 2000 rating decision is new and material to the claim for service connection for left ankle disability and that claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Chronic left ankle disability including arthritis was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 4. The criteria have been met for withdrawal by the Veteran of a substantive appeal on the issue of a disability rating higher than 50 percent for PTSD. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204(b) (2012). 5. The criteria have been met for withdrawal by the Veteran of a substantive appeal on the issue of a disability rating higher than 10 percent for left elbow disability. 38 U.S.C.A. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204(b). 6. The criteria have been met for withdrawal by the Veteran of a substantive appeal on the issue of a disability rating higher than 10 percent for right elbow disability. 38 U.S.C.A. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204(b). 7. An effective date of January 15, 2002, but no earlier, is warranted for the assignment of a 50 percent disability rating for PTSD. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a request to reopen a previously denied claim based on the submission of new and material evidence, notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. Kent v. Nicholson, 20 Vet. App. 1 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). Also, in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that that the VLJ who conducts a Board hearing fulfill duties to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. VA provided the Veteran with VCAA notice in letters issued in March 2001, February 2005, May 2006, and December 2010. In those letters VA advised the Veteran what information was needed to substantiate claims for service connection and what constitutes new and material evidence to reopen a previously denied claim. VA informed the Veteran what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. VA advised the Veteran how VA establishes disability ratings and effective dates. VA has made reasonable efforts to obtain relevant records identified by the Veteran. The claims file (including information in paper and electronic forms) contains service treatment records, post-service treatment records, reports of VA medical and transcripts of a hearing that the Veteran had in September 2009 before an RO Hearing Officer and a Travel Board hearing the Veteran had in May 2013 before the undersigned Veterans Law Judge (VLJ). The Veteran has had VA medical examinations that adequately addressed the condition of his left ankle and his PTSD. In the 2013 Travel Board hearing the Veteran was assisted by an accredited representative from Disabled American Veterans. The undersigned VLJ fully explained the issues and suggested the submission of evidence that may have been overlooked. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The Board therefore finds that, consistent with Bryant, the VLJ who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error provided in notice during the Veteran's hearing constitutes harmless error. The Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration on the merits of the claims that the Board is deciding at this time. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Left Ankle Disability The Veteran seeks to reopen a previously denied claim for service connection for left ankle disability. A review of the procedural history of the claim follows. In October 1991 the Veteran submitted a claim for service connection and compensation for several disorders, including a disorder manifested by pains in his feet. In a May 1992 rating decision the RO denied service connection for left ankle arthralgia. In July 1992 the Veteran submitted a notice of disagreement (NOD) with the denial of service connection for left ankle disability. In a November 1997 decision the Board denied service connection for a left ankle disorder. A Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C.A. §§ 7103(a), 7104 (West 2002); 38 C.F.R. § 20.1100(a) (2012). A Board decision can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002). In August 1999 the Veteran submitted a letter in which he in effect requested reopening of the previously denied claim for service connection for left ankle disability. In a July 2000 rating decision the RO denied the request to reopen a claim for service connection for left ankle disability, finding that new and material evidence had not been received. A rating decision becomes final when a claimant does not file an NOD within one year after the decision is issued. 38 U.S.C.A. § 7105. A rating decision also becomes final if a claimant files a timely NOD, but does not file a timely substantive appeal. 38 U.S.C.A. § 7105. New and material evidence received within a year after the rating decision will be considered as having been filed in connection with the claim. 38 C.F.R. § 3.156(b). If service department records not previously associated with the claims file are received VA will reconsider the claim. 38 C.F.R. § 3.156(c). The Veteran did not submit an NOD with the July 2000 rating decision, and that decision became final. No new and material evidence was received within the appeal period, and no additional service department records were received after that rating decision. A final decision on a claim that has been denied shall be reopened if new and material evidence with respect to that claim is presented or secured. 38 U.S.C.A. §§ 5108, 7104(b). The Court has ruled that, if the Board determines that new and material evidence has been submitted, the case must be reopened and evaluated in light of all of the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In March 2003 the Veteran requested reopening of the previously denied claim for service connection for left ankle disability. In a June 2005 rating decision the RO denied reopening of the previously denied claim for service connection for left ankle disability, finding that new and material evidence had not been received. In May 2006 the Veteran submitted an NOD with the June 2005 rating decision. In January 2007 the Veteran requested a formal hearing as soon as possible. In October 2007 the RO issued a statement of the case (SOC) that addressed claims the Veteran had pending including the claim for service connection for left ankle disability. After a claimant initiates an appeal of a VA rating decision by submitting an NOD, and VA issues an SOC, the claimant must perfect the appeal by filing a substantive appeal. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.202, 20.302 (2012). The substantive appeal must be received within 60 days after the RO mails the SOC, or within one year after the RO mails the rating decision that the claimant is appealing, or else the rating decision is final. In October 2008 the Veteran requested a Board hearing regarding his appealed claims. In December 2008 the Veteran requested a hearing with an RO decision review officer (DRO). In September 2009 the Veteran had a DRO hearing. In August 2010 the Veteran requested a hearing on his claim. In a September 2010 supplemental statement of the case (SSOC) the RO indicated that the Veteran's substantive appeal was received in October 2008. The RO stated that the substantive appeal was considered timely because the RO did not afford the Veteran a personal hearing prior to issuing the SOC as the Veteran had requested. As the RO considered the Veteran's appeal of the June 2005 rating decision timely, that decision did not become final and the appeal of that decision is pending. In order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the last time that the claim was finally disallowed on any basis (not only since the last time that the claim was disallowed on the merits). Evans v. Brown, 9 Vet. App. 273 (1996). The most recent final disallowance of the Veteran's claim for service connection for left ankle disability is the July 2000 rating decision. The Board will consider whether new and material evidence has been submitted since that decision. The regulation defining new and material evidence, 38 C.F.R. § 3.156, was revised in 2001. The revised regulation applies to any claim to reopen a finally decided claim received on or after August 29, 2001. See 66 Fed. Reg. 45,620 et seq. (2001). The revised regulation applies to the Veteran's March 2003 request to reopen the claim for service connection for left ankle disability. Under the revised version of 38 C.F.R. § 3.156, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis, may be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. The evidence that was associated with the Veteran's claims file in July 2000 includes the Veteran's service treatment records, post-service medical records, VA examination reports, and statements from the Veteran. The Veteran's service treatment records show that he received outpatient treatment in January 1978 for a superficial incised cut on the left foot just inferior to the left ankle. A clinician cleaned the cut. In July 1991 the Veteran had an orthopedic consultation. He reported a several year history of pain in multiple joints including the left ankle, both knees, and both elbows. He stated that he had pain and stiffness in the early morning and late evening. The clinician observed that the Veteran's left and right ankles each had a full range of motion and did not have tenderness or swelling. On VA medical examinations in December 1991 and January 1992 the Veteran reported having mild joint pains in his feet. He related a two year history of left foot pain in the arch and in the ankle joint. He stated that he had episodes of pain in the ankle and giving way of the ankle. The examiner found evidence of pain and tenderness anteriorly over the left ankle joint. The ankle had full and normal motion with no evidence of pain on motion. The examiner listed an impression of arthralgia of the left ankle, cause unknown. On VA examination in September 1995 the Veteran reported bilateral foot pain and ankle swelling. He related having had synovitis of the left ankle. The examiner found no swelling and no specific tenderness of the left ankle. Motion of the left ankle was to 14 degrees of dorsiflexion and 36 degrees of plantar flexion, which the examiner characterized as normal. X-rays showed mild hallux valgus bilaterally. In VA treatment in May and June 1999 the Veteran reported left ankle pain which, along with pain in his left arch and heel, limited his capacity for walking. A treating clinician noted that the left ankle had crepitus on dorsiflexion, and that the range of motion of the ankle was within normal limits. Left ankle x-rays showed a small osteophyte on the anterior aspect of the distal tibia. The clinician's impression was multiple joint osteoarthritis. The evidence that has been added to the record since July 2000 includes records of more medical treatment and examinations and transcripts of the September 2009 and May 2013 hearings. Notes from VA primary care in September 2004 reflect that the Veteran had degenerative joint disease in multiple joints including both ankles. In March 2005 the Veteran reported a several month history of left ankle pain. A treating podiatrist found evidence of pain to palpation of the left ankle. The range of motion of the ankle was normal. The podiatrist's impression was sprain. The podiatrist prescribed a coban wrap and an air cast. In August 2005 the Veteran reported left ankle pain that was not helped by a brace. VA treatment notes dated in 2005 through 2009 include sprain of the lateral collateral ligament of an ankle in the list of active problems. On VA examination in March 2007, the Veteran's gait was within normal limits. The left and right ankles each had normal ranges of motion without additional limitation due to pain. In VA primary care in March 2008 the Veteran reported increased left ankle pain. In the September 2009 RO Hearing Officer hearing the Veteran reported that his left ankle sometimes suddenly gave out. He stated that this sometimes caused him to fall. He indicated that he did not have a specific left ankle injury during service. In the May 2013 Travel Board hearing the Veteran stated that during service he had left ankle pain, and twisted his left ankle multiple times, but that he did not seek treatment for it. He noted that after service VA clinicians found degenerative joint disease in his left ankle. In July 2000 the record contained evidence that the Veteran had left ankle symptoms during and after service. There was post-service evidence of left ankle arthritis. Evidence added after July 2000 shows ongoing left ankle symptoms. In hearing testimony the Veteran pointed out continuity of symptoms during and after service and a diagnosis of degenerative joint disease. Some of the new evidence addresses the questions as to whether the Veteran had a left ankle disorder during service and whether left ankle symptoms during service are related to left ankle arthritis diagnosed after service. Thus, some of the new evidence relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. As some of the new evidence is also material, the Board grants reopening of the claim for service connection for left ankle disability. The Board will consider on the merits the reopened claim for service connection for left ankle disability. The Board notes that the Court has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative means of establishing service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In this case, during the Veteran's last year of service he reported a several year history of left ankle pain. A clinician who examined him did not find objective evidence of a left ankle disorder at that time. On VA examinations two to three months after the Veteran's retirement from service the Veteran again reported left ankle symptoms that began more than a year earlier and continued through the present. At that time an examiner found evidence of pain in the joint. There is no indication that x-rays or other imaging were performed at that time, and the examiner neither found nor ruled out any specific underlying cause for the pain. The medical records and the Veteran's accounts reflect left ankle symptoms continuing after service. The Veteran is competent to report symptoms such as pain that he experiences. The Veteran's accounts have been consistent, and the Board finds them credible. The Board finds that the Veteran's accounts and medical records provide persuasive evidence that he had left ankle symptoms during service that continued after service and through the present. X-rays taken in 1999 showed left ankle arthritis. No clinician has addressed the question as to whether left ankle symptoms during and after service are manifestations of a diagnosable left ankle disorder, including the arthritis shown in 1999. On the other hand, there is no affirmative evidence that the arthritis found on the earliest left ankle x-rays of record is separable from the symptoms that the Veteran by then had been experiencing for several years. Resolving reasonable doubt in the Veteran's favor, the Board accepts that the left ankle symptoms that began in service were manifestations of chronic left ankle disability that has continued since service, and that eventually was shown by x-rays to include arthritis. The Board thus grants service connection for chronic left ankle disability including arthritis. Withdrawn Appeals Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). In the May 2013 Travel Board hearing the Veteran stated that he was withdrawing his claims for disability ratings higher than the existing 50 percent rating for PTSD and the existing ratings of 10 percent each for disabilities of the left and right elbows. A transcript of the hearing is associated with the Veteran's record. The Veteran's statements satisfy the requirements for withdrawing the appeals with respect to the claims for higher ratings for PTSD and left and right elbow disabilities. Thus, with respect to those claims, there is no remaining error of fact or law for appellate consideration, and the appeals are withdrawn. Accordingly, the Board does not have jurisdiction to review the appeals of those claims, and the appeals of those claims are dismissed. PTSD In 1995 the Veteran submitted a claim for service connection for PTSD. Initially the claim was denied in a 1996 rating decision, which the Veteran appealed. However, as noted above, in a June 1997 rating decision the RO granted service connection, effective June 29, 1995, for PTSD, and assigned a disability rating of 0 percent. The Veteran did not initiate a timely appeal of the June 1997 rating decision by filing an NOD within a year after the RO mailed that decision. The rating decision informed him that this was no longer an issue on appeal since service connection had been granted. This was legally correct. In 1998 the Veteran requested a copy of his claims file; he did not indicate disagreement with any prior decision. In 1999, the Veteran again requested a copy of his claims file; he did not indicate disagreement with any prior decision. A copy of his file was provided to him in April 1999, and he then asked to meet with RO personnel to discuss his file. A report of contact dated in April 1999 indicated, among other things, that the Veteran felt errors had been made in his case and he wanted to file a NOD. However, this communication was well after a year had passed from the June 1997 rating decision and simply cannot be a NOD. In July and August 1999 correspondence to congressional leaders, the Veteran again expressed disagreement with VA's handing of his PTSD claim. Again, however, this communication was well after a year had passed from the June 1997 rating decision and simply cannot be a NOD. In a December 1999 letter, the RO indicated that it was construing the Veteran's statements as a claim for a higher rating for PTSD. In the July 2000 rating decision the RO continued the 0 percent rating. In December 2000, the Veteran visited the RO concerning the notation in the rating decision that the PTSD was at 10 percent. He was informed this was a mistake, and again told such in a December 2000 letter. Although there were some additional communications in 2001 concerning a divorce and a claim for the feet, at no time did the Veteran indicate disagreement with the 2000 decision denying an increase for his PTSD. In a March 2002 statement the Veteran again expressed general disagreement with VA's handling of his claims, including his PTSD claim. Another statement was received from him in March 2003 reiterating his general dissatisfaction. The RO informed him, correctly, in an April 2003 letter, that these letters were received well outside the year to appeal the 2000 rating decision and could not be considered a NOD. In various congressional correspondence dated in January and February 2004, the RO indicated that the Veteran had no appeals pending. He requested that he be given a hearing before a Decision Review Officer, and he stated in an October 2004 letter that various mistakes had been made on his claims. He asserted that he had appealed the decision awarding 0 percent for PTSD, but as the above discussion shows, that is simply incorrect. The Veteran sent copies of his 2004 statement to congressional leaders, and the RO conducted a thorough review of the history of his claims. In December 2004 he again asked for a hearing, stating that he was "appealing" various claims, including PTSD. Again, any correspondence in 2004 was well outside the time period he had to appeal the 2000 rating decision. Simply using the word "appeal" does not make it true. The RO again told him such in a December 2004 letter, telling him his correspondence would be accepted as a new claim. These claims were developed, ultimately leading to the June 2005 and October 2007 rating decisions, which resulted in a 50 percent rating effective in December 2004. The Veteran has appealed for earlier effective dates for the rating increase. Unless otherwise provided, the effective date for an award of compensation for service-connected disability shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. The effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date on an increase in disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within one year from such date, and otherwise the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). Therefore, the starting place for any effective date analysis is the date of claim. Here, for the reasons detailed above, all PTSD related claims adjudicated in the 1997 and 2000 rating decisions became final due to the lack of filing a timely NOD. Prior to the 2005 rating decision, the last final decision addressing PTSD was the one issued in 2000. The question then is whether there are any claims, formal or informal, that were received by VA after the 2000 rating decision, but before the December 2004 claim, which is the source of the effective date now assigned. Working in reverse chronological order, with respect to the March 2002 and March 2003 statements described above, in the April 2003 letter, in addition to telling the Veteran that these statements could not be accepted as a NOD, because they were untimely, the RO also informed him that the statements would be accepted as a reopened claim, including for PTSD. A claim is defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). The benefit sought must be identified, but need not be specific. While VA regulations allow considerable leeway in what constitutes a claim, the Veteran's application for benefits must be in writing and must request a determination of entitlement, or evidence a belief in entitlement, to a benefit. In other words, the intent of the claimant to seek a benefit must be clear. Looking at the 2002 and 2003 statements from the Veteran, with this focus in mind, it is clear that he believed mistakes had been made on his PTSD claim and that he was entitled to compensation. The Board agrees with the RO, then, that these statements could be liberally construed as claims. Doing so would set March 29, 2002 as the date of claim for an increase. There are absolutely no documents between the 2000 rating decision and the March 2002 statement indicating any intent to pursue his PTSD claim. As discussed in detail above, all prior claims were the subject of final rating decisions and cannot serve as the basis for an earlier effective date. Concluding that March 29, 2002, is the date of claim does not end the analysis. Again, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. (emphasis added). The Board must address whether the evidence shows the criteria for a higher rating were met at any point between date of claim (March 2002) and the effective date now assigned (December 2002). Furthermore, the effective date for an increase in disability compensation can be as early as March 29, 2001, if that is the earliest date as of which it is factually ascertainable that an increase in disability had occurred. VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10 (2012). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). In determining the level of impairment present during the time in question, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation over a period of time. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating schedule provides for evaluating mental disorders such as PTSD under a General Rating Formula for Mental Disorders, which follows: 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; memory loss for names of close relatives, own occupation, or own name .......................... 100 percent 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); inability to establish and maintain effective relationships ............................................. 70 percent Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships ........................... 50 percent Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) ..................................................... 30 percent Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication ............................. 10 percent A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication ................................ 0 percent 38 C.F.R. § 4.130 (2012). This is the same rating criteria that was in effect in 2001-2002. In treating and evaluating mental disorders, mental health professionals sometimes assign a Global Assessment of Functioning (GAF) score. The GAF scale is a scale of psychological, social, and occupational functioning a hypothetical continuum of mental health and illness. It is provided in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV). Assessments on the GAF scale are not to include impairment in functioning due to physical or environmental limitations. GAF scores of 61 to 70 are for some mild symptoms (e.g., depressed mood and mild insomnia) or moderate difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. GAF scores of 51 to 60 are for 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). DSM-IV. When the Veteran submitted a claim for service connection for PTSD in 1995, he reported that he had not received private mental health treatment. In VA treatment in April 1996 the Veteran reported difficulty sleeping, nightmares, flashbacks, and hypervigilance. He indicated he had traumatic experiences in service in Vietnam and while serving on the USS Vincennes in 1988 when forces aboard the ship shot down an airliner. A clinician diagnosed PTSD. In July 1996 the Veteran had a VA PTSD examination. He related traumatic experiences during his service aboard a vessel in the waters of Vietnam in 1968 and 1969 and other traumatic experiences later in service. He reported that presently he had dreams about Vietnam, sleep disturbances, and irritability. The clinician who examined him concluded that he did not have PTSD. In November 1996 a VA psychologist wrote that a VA Medical Center (VAMC) PTSD Clinical Team concluded that the Veteran had PTSD. VA treatment notes from January and March 2002 reflect the Veteran's reports of nightmares, flashbacks, and impaired sleep. He indicated that these symptoms caused trouble in his relationship with his wife. A treating primary care clinician provided a diagnosis of PTSD and prescribed medication. On VA PTSD examination in February 2002, the Veteran reported traumatic experiences during service and problems he had experienced since service. The examiner concluded that the Veteran had a personality disorder and did not have PTSD. In August 2004 the Veteran sought mental treatment at a VA facility after moving to Texas from California. He reported that he had been diagnosed with PTSD and was stable on medications. He stated that he had nightmares and flashbacks and was hypervigilant. He indicated that in the past he almost accidentally shot a relative, and as a result got rid of all firearms. In an October 2004 mental health assessment the Veteran reported that at times of stress he experienced a depressed mood, insomnia, and irritability. He reported having chronic worries, nightmares, intrusive thoughts, avoidance symptoms, anger dyscontrol, and social withdrawal. He indicated that he had not worked since 1998. He stated that he had taken courses toward a degree but had been unable to complete it because it was too much pressure. He reported that he had been married and divorced four times, and that he currently lived with a girlfriend. The assessing clinician found that the Veteran was oriented and had normal speech and an appropriate affect. The clinician indicated that the Veteran's concentration, memory, insight, and judgment were intact. The clinician found that the Veteran had PTSD that was well controlled on medication. The clinician assigned a GAF score of 65. The Veteran underwent VA psychological testing in November 2004. Test results were consistent with a diagnosis of PTSD. On VA PTSD examination in February 2005 the Veteran indicated that he continued on medications to treat PTSD. The examiner found that the Veteran's PTSD caused him to have difficulty establishing and maintaining effective work and social relationships. The examiner assigned a GAF score of 65. Subsequent VA PTSD examinations showed comparable ongoing impairment due to PTSD. VA treatment records show ongoing medication to treat PTSD. In the September 2009 RO Hearing Officer hearing and the May 2013 Travel Board hearing, the Veteran described the current effects of his PTSD. In the 2013 hearing he stated that he had PTSD symptoms long before he sought treatment and was diagnosed. He indicated that his PTSD led to marital problems. He stated that medications tried after his PTSD diagnosis in the 1990s did not work. He reported that he had been on the medication he currently took since about 2000. Evidence from the 1990s regarding the Veteran's PTSD does not provide a clear picture of how his PTSD affected his occupational and social functioning. Although an effective date of March 2001 could theoretically be assigned, this must be based on evidence factually showing an increase in disability. There is no such evidence here. Although there are VA outpatient records dated in 2001, they show no treatment for PTSD or any record of symptoms or impairment. Therefore, the Board declines to assign an effective date one year prior to claim, or, for that matter, for any date in 2001 based on lack of evidence showing an ascertainable increase in disability. However, treatment records from 2002 forward reflect that he was on continuous medication for his PTSD and that his PTSD interfered in his social relationships. From the time of treatment on January 15, 2002, then, it was factually ascertainable that the Veteran's PTSD caused him difficulty in maintaining effective social relationships, consistent with the criteria for a 50 percent rating. As a claim for increase was received in March 2002, within a year after that level of disability became factually ascertainable, the Board will grant an effective date of January 15, 2002, for a 50 percent rating. ORDER A claim for service connection for left ankle disability is reopened. Entitlement to service connection for chronic left ankle disability including arthritis is granted. [Continued on Next Page] The appeal for a disability rating higher than 50 percent for PTSD is dismissed. The appeal for a disability rating higher than 10 percent for left elbow disability is dismissed. The appeal for a disability rating higher than 10 percent for right elbow disability is dismissed. A 50 percent disability rating for PTSD is granted effective January 15, 2002, subject to the laws and regulations governing payment of monetary benefits. REMAND The Veteran is seeking service connection for disorders of both feet described as fallen arches with plantar fasciitis and sinus tarsi syndrome. Service connection is established for another foot disorder, hallux valgus of each foot. The RO has characterized the issue regarding fallen arches with plantar fasciitis and sinus tarsi syndrome as a request to reopen a previously denied claim for service connection. A review of the record reveals that there is no previously denied claim for service connection for these foot disorders that became a final decision. Therefore the issue on appeal before the Board is one of service connection for the foot disorders, to be considered on the merits of the claim. An explanation of the procedural history and this conclusion follows. The Veteran has been seeking service connection for foot disorders since soon after his retirement from service. His October 1991 service connection claim included pains in the feet. The Board ultimately granted service connection for bilateral hallux valgus in a November 1997 decision. In an August 1999 letter the Veteran indicated that there were other conditions for which he was seeking service connection, including fallen arches, plantar fasciitis, and sinus tarsi syndrome. In a July 2000 rating decision, the RO denied service connection for fallen arches with plantar fasciitis and sinus tarsi syndrome. The Veteran sent the RO a statement in October 2000. In that statement he noted that in the RO had denied his 1999 claim for service connection for disorders of the feet. He noted that he had undergone a left foot surgery in September 2000 and was scheduled to undergo a right foot surgery in November 2000. A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with a rating decision and a desire to contest the result will constitute an NOD. 38 C.F.R. § 20.201 (2012). While special wording is not required, the NOD must be in terms which can be reasonably construed as disagreement with the rating decision and a desire for appellate review. Id. The Veteran's November 2000 statement can be reasonably construed as expressing disagreement with the July 2000 rating decision regarding service connection for disorders of the feet and as desiring appellate review. The Veteran's November 2000 statement thus constitutes an NOD with that decision on that issue. As an NOD, it was timely, because the RO received it less than a year after it mailed the rating decision. Because the Veteran initiated an appeal of the July 2000 rating decision by filing a timely NOD, that decision did not become final. The RO did not issue the Veteran an SOC in response to the November 2000 NOD. Later, in March 2002, the RO issued another rating decision, in this one again denying service connection for fallen arches with plantar fasciitis and sinus tarsi syndrome. The RO mailed that decision on March 22, 2002. On March 29, 2002, the RO stamped as received a statement from the Veteran. The Veteran wrote that since 1991 he had been pursuing service connection claims, including claims regarding conditions affecting his feet. On March 19, 2003, the RO stamped as received another statement from the Veteran. The Veteran wrote that since 1991 he had been appealing the issue of service connection for disorders of the feet and he was again appealing the RO's decision. In an April 2003 letter the RO informed the Veteran that his March 2002 and March 2003 NODs were not timely because they were received more than a year after the July 2000 rating decision. The RO indicated that it was accepting the Veteran's NOD as a reopened claim for service connection for disorders of the feet. Subsequently, in June 2005 and October 2007, the RO issued rating decisions denying reopening of a claim for service connection for fallen arches with plantar fasciitis and sinus tarsi syndrome on the grounds that new and material evidence had not been received. As noted above, the Board finds that the Veteran filed a timely NOD with the July 2000 rating decision. He also filed a timely NOD with the March 2002 rating decision. Therefore, neither the 2000 nor the 2002 rating decision became a final decision, and the Veteran's appeal of those decisions is still pending. The issue on appeal therefore is not one of reopening a previous decision, but is an appeal on the merits for service connection for fallen arches with plantar fasciitis and sinus tarsi syndrome. Turning to the service connection claim on its merits, a review of the record shows that during service, in 1991, the Veteran reported bilateral foot pain. A podiatrist found that he had bilateral hallux valgus. Soon after service the Veteran reported a two year history of pain in his feet, including pain in the arches. From 1999 forward he reported pain in multiple parts of his feet including the great toes, arches, heels, and tarsal tunnels. Clinicians have diagnosed bilateral fallen arches, plantar fasciitis, and sinus tarsi syndrome. The file contains records of left and right foot surgeries in 2000, and the Veteran has reported having an additional surgery on each foot. The Veteran has had ongoing foot symptoms and treatment including the use of orthotics. Service connection is already established for bilateral hallux valgus. The earliest diagnoses of fallen arches, plantar fasciitis, and sinus tarsi syndrome were recorded several years after the Veteran's service. The Veteran reported symptoms in both feet during and after service, and his reports of symptoms in areas other than the great toes were recorded soon after service. The evidence leaves questions regarding the likely etiology of the Veteran's fallen arches, plantar fasciitis, and sinus tarsi syndrome. The Board will remand the issue for a VA medical examination with review of the claims file and opinion as to the likelihood that those current disorders are related to service or are secondary to the service-connected hallux valgus. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA medical examination to address the likely etiology of current foot disorders including fallen arches, plantar fasciitis, and sinus tarsi syndrome. Provide the examiner the Veteran's claims file and any relevant information from his Virtual VA electronic claims file for review. Ask the examiner to review the record and examine the Veteran. The examiner is informed that service connection is already established for the Veteran's bilateral hallux valgus, and that in addition to hallux valgus, clinicians have diagnosed fallen arches, plantar fasciitis, and sinus tarsi syndrome. For each of these disorders (fallen arches, plantar fasciitis, and sinus tarsi syndrome), please provide opinions as to whether it is at least as likely as not that (A) the disorder became manifest during service or is otherwise causally related to service, or (B) the disorder is proximately due to or the result of, or is aggravated by, existing hallux valgus. Please explain the reasoning leading to the conclusions. 2. Thereafter review the expanded record and reconsider the remanded claim on the merits. If that claim remains denied, issue a supplemental statement of the case and afford the Veteran an opportunity to respond. Thereafter, return the case to the Board for appellate review if otherwise in order. The Board intimates no opinion as to the ultimate outcome of the matter that the Board has remanded. The Veteran has the right to submit additional evidence and argument on that matter. 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs