Citation Nr: 1326030 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 05-20 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a left knee disorder. 2. Entitlement to service connection for a left shoulder disorder. 3. Entitlement to service connection for a back disorder. 4. Entitlement to service connection for hypertension, to include as secondary to the service-connected diabetes mellitus, type II. 5. Whether a timely notice of disagreement (NOD) was filed as to a May 20, 2004, rating decision granting service connection for posttraumatic stress disorder (PTSD) and assigning a 30 percent initial rating effective from January 15, 2004. 6. Entitlement to a rating in excess of 70 percent for PTSD. 7. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from September 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal November 2004, May 2006, May 2007 and July 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) Jackson, Mississippi. In December 2005, the Veteran testified at a hearing before a Decision Review Officer; in April 2013, he testified at a hearing before the undersigned Veterans Law Judge (VLJ). Transcripts of both hearings have been associated with the claims file. The issues of service connection for left shoulder and back disorders, hypertension and entitlement to a TDIU being remanded 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. By an unappealed July 1971 rating decision, the RO denied service connection for a left knee disorder. 2. Evidence received after the July 1971 denial, when considered by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 3. The Veteran has post-operative residuals of a left knee injury which are as likely as not related to his active duty. 4. In a May 20, 2004, rating decision, the Veteran was granted service connection for PTSD, evaluated as 30 percent disabling effective January 15, 2004. 5. Notice of the May 20, 2004, decision was mailed to the Veteran on May 24, 2004. He was informed of his appellate rights and that any disagreement with the rating decision should be submitted to his local RO one year from the date of the letter. 6. A written communication from the Veteran dated May 19, 2005, expressing disagreement with the 30 percent disability rating assigned in the May 20, 2004, rating decision was received by VA on June 3, 2005. 7. The Veteran's NOD to the May 20, 2004, rating decision was not postmarked or received by VA within one year of the date he received notice of that decision. 8. The evidence does not demonstrate that the PTSD results in 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 oneself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. CONCLUSIONS OF LAW 1. The RO's July 1971 denial of service connection for a left knee disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2012). 2. Evidence received since the final July 1971 decision is new and material, and the claim for service connection for a left knee disorder is reopened. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156, 20.1103 (2012). 3. The criteria for service connection for post-operative residuals of a left knee injury are met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 4. A timely NOD was not submitted to the May 20, 2004, rating decision granting service connection for PTSD and assigning a 30 percent disability rating. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.3(a), 20.200, 20.201, 20.300, 20.301, 20.302, 20.305, 20.306 (2012). 5. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411(2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant was must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of the specific diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this case, the Board is reopening the issue of service connection for a left knee disorder and granting the underlying issue. Consequently, the Board finds that any lack of notice and/or development cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. Regarding the timeliness issue, governing law and regulations provide that VA is not required to provide assistance to a claimant if no reasonable possibility exists that such assistance would aid in substantiating the claim (i.e., there can be no entitlement to the benefit as a matter of law). 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). The United States Court of Appeals for Veterans Claims (Court) has further held that VA's duties to notify and assist do not apply where the law, and not the evidence, is dispositive of the claim. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As will be discussed below in greater detail, the law is dispositive of the issue of whether a timely NOD was filed in response to a May 2004 rating decision, and VA's duties to notify and assist do not apply. As for the Veteran's increased rating claim, letters dated in February 2006, February 2007 and December 2008 notified the Veteran regarding the type of evidence necessary to establish his claim. He was instructed that to show entitlement to an increased evaluation for his service-connected disability, the evidence must show that the disability has gotten worse. The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The February 2007 and December 2008 letters also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, the February 2007 and December 2008 letters informed the Veteran that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), personnel records, Social Security Administration (SSA) records, post-service medical records and also secured examinations in furtherance of his claims. Pertinent VA examinations were obtained in May 2006, April 2009 and January 2012. 38 C.F.R. § 3.159(c)(4). The VA examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorders. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issues adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. The Board acknowledges the Veteran's contentions that a volume is missing from his claims file. However, a careful review of the claims file does not indicate that any records are missing. In this regard, it appears that records in the early 1970s had been misfiled in another veteran's claims file; however, in April 1971, the Veteran's records were correctly transferred to his current claims file. Accordingly, the Board concludes that no volumes are missing. VA has no duty to inform or assist that was unmet. The Veteran was also provided with a hearing related to his present claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing to fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ explained the issues on appeal, but did not suggest the submission of any additional evidence. This was not necessary, however, because the Veteran fully described why an increased rating for his PTSD was warranted and why his NOD was timely filed. He also testified regarding where he sought treatment for his PTSD; such records had already been obtained by the RO. Accordingly, the Veteran is not shown to be prejudiced on this basis. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). II. Analysis A. New and Material Service connection for a left knee disorder was initially denied in July 1971 because the evidence did not show that the Veteran's in-service left knee injury resulted in a current disabling disorder. In other words, evidence of record did not reflect a current disability for which service connection could be granted. The July 1971 rating decision was returned to the RO as the Veteran had moved; it was resent in October 1971. After receiving notice of the July 1971 decision in October 1971, the Veteran did not initiate an appeal of the denial of that issue. Later, in January 2004, however, he applied to have his claim reopened. A decision of the RO becomes final and is not subject to revision on the same factual basis unless an appeal is initiated within one year of the notice of decision, or within 60 days of the issuance of the statement of the case (SOC). 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103 (2012); 38 C.F.R. §§ 19.129, 19.192 (2012). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384. Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" evidence is evidence not previously submitted to agency decision makers. "Material" evidence is 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 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). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, relevant evidence of record at the time of the July 1971 rating decision consisted of the Veteran's STRs, a VA examination in May 1971, and his contentions. His STRs show that he complained of left knee effusion in September 1968. He reported that the initial injury was incurred while playing football in February 1968. The Veteran was diagnosed with residual from ligamentous tears. His December 1970 discharge examination showed clinically normal lower extremities; no left knee disorder was diagnosed. X-rays at the May 1971 VA examination showed minimal productive changes involving the lateral tibial plateau. Physical examination of the knee did not reveal clinical findings of a disability. The evidence of record did not show that the Veteran had residuals of his in-service left knee injury. Accordingly, at the time of the denial of the claim for service connection for a left knee disorder in July 1971, the claims folder contained no competent evidence of a current disabling left knee disorder related to the Veteran's in-service injury. Thus, the RO, in July 1971, denied service connection for a left knee disorder. The Veteran did not appeal the RO's decision, and that denial became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2012). In reaching the conclusion that the July 1971 decision is final, the Board is cognizant of the recent holding of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Bond v. Shinseki, 659 F.3d 1362 (2011). In that case, the Federal Circuit found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions during relevant time periods to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362 (2012). Here, no additional evidence pertinent to the issue of service connection for a left knee disorder was received between the July 1971 rating decision and the 2004 claim. The July 1971 rating decision is thus final. The relevant evidence received since the July 1971 denial consists of VA treatment records dated through February 2012, private medical records dated from May 1972 to July 1972, a VA examination dated in January 2008, SSA records and the Veteran's contentions, including his testimony at the December 2005 and April 2013 hearings. The Veteran's contentions indicate that he had continuous knee problems since the in-service injury. The private treatment records show that the Veteran had left knee surgery in June 1972. The medical meniscus and lateral meniscus were removed. Those records show that he reported his in-service knee injury. The January 2008 VA examiner diagnosed the Veteran with degenerative joint disease of the left knee, status post medial and lateral meniscectomy. The examiner opined that it would be mere speculation to state that the 1972 surgery was related to the effusion and laxity in service and to state that the currently diagnosed arthritis was related to the effusion and laxity in service. The rationale was that there was no documented continuity of care or chronicity of care from the time the Veteran injured his left knee in 1968 until he was seen and had surgery on the left knee in 1972. This newly received evidence relates to unestablished facts necessary to reopen the previously denied claim of service connection for a left knee disorder; namely, evidence of a current left knee disorder and a continuity of symptomatology since the in-service injury. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that, in determining whether evidence raises a reasonable possibility of substantiating a claim for purposes of reopening a claim, a veteran's testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus. In reaching this conclusion, the Court reaffirmed the notion that a veteran's testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is no longer available to corroborate it. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Here, the Veteran has provided lay evidence regarding a continuity of symptomatology since service. The pertinent evidence of record also shows a diagnosis of arthritis. Pursuant to 38 C.F.R. § 3.303(b), continuity of symptomatology can be used to support a nexus for chronic diseases listed in 38 C.F.R. § 3.307, which includes arthritis. The Board concludes, therefore, that such additional evidence of a current diagnosis of arthritis and a continuity of symptomatology since service is both new and material. Accordingly, the Board grants the Veteran's application to reopen this previously denied issue. B. Service Connection The Veteran contends that he has a left knee disorder that is related to his military service. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), when a chronic condition is present, a claimant may establish the second and third elements by demonstrating continuity of symptomatology. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is included in 38 C.F.R. § 3.309. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). After a careful review of the evidence, the Board concludes that service connection for a left knee disorder is warranted. Specifically, the evidence is supportive of a finding of service connection for post-operative residuals of a left knee injury. The Veteran's STRs clearly reflect a left knee injury. A record dated in September 1968 shows that the Veteran injured his knee in February 1968 while playing football. The Veteran was diagnosed with residual from ligamentous tears. Therefore, an in-service left knee injury has been shown. A May 1971 VA examination in connection with the initial claim included X-rays that showed minimal productive changes involving the lateral tibial plateau. Private treatment records show that the Veteran had left knee surgery in June 1972; the medical meniscus and lateral meniscus were removed. Those records show that he reported his in-service knee injury and that he had repeated episodes of swelling, locking and giving way in the knee since the in-service injury. The Veteran was afforded a VA examination in January 2008. He was diagnosed with degenerative joint disease of the left knee, status post medial and lateral meniscectomy. The Veteran's testimony at his April 2013 hearing confirms current left knee problems. Therefore, the evidence shows a current disability. The evidence of record is also suggestive of a nexus between the Veteran's current left knee disability and his military service. At the Veteran's April 2013 hearing, his testimony indicated that he had continuous symptoms since the in-service injury. The Board finds the Veteran both competent and credible to report such continuity of symptomatology. Furthermore, the Veteran's 1972 treatment records pertaining to his left knee surgery show that he reported continuous symptoms since the in-service injury. Considering the close proximity in time between the 1972 surgery and the Veteran's military service, when affording the Veteran the benefit-of-the-doubt, the Board concludes that he has post-operative residuals of a left knee injury related to his military service. The evidence does not show that the Veteran incurred any left knee injury between his in-service injury and the 1972 surgery. Although the 1972 treatment records do not specifically contain an opinion relating the Veteran's left knee problems to his military service, in light of the Veteran having no other left knee injuries, the Board concludes that it is at least as likely as not that the Veteran's need for surgery was due to his in-service injury. In reaching the conclusion that service connection is warranted, the Board acknowledges the January 2008 VA examiner's opinion that it would be mere speculation to state that the 1972 surgery was related to the effusion and laxity in service and to state that the currently diagnosed arthritis was related to the effusion and laxity in service. The rationale was that there was no documented continuity of care or chronicity of care from the time the Veteran injured his left knee in 1968 until he was seen and had surgery on the left knee in 1972. However, although treatment records may not have shown care between 1968 and 1972, as the Board accepts the Veteran's reports of continuous symptoms since the in-service injury, the Board finds that the examiner's rationale lacks probative value. Furthermore, the examiner did not even provide a negative nexus opinion, but merely indicated that it would be speculation to provide an opinion relating a current disability to the Veteran's military service. In consideration of the Veteran's in-service left knee injury, the need for surgery less than two years after discharge from service, as well as the Veteran's reports of a continuity of symptomatology, the Board concludes that a nexus between his current post-operative residuals of a left knee injury and his military service has been established. Therefore, in considering the Veteran's in-service injury, the indication of current post-operative residuals of a left knee injury, the Veteran's competent and credible reports of a continuity of symptomatology following the in-service injury, as well as the pertinent medical evidence of record, and in affording the Veteran the benefit-of-the-doubt, the Board finds that it is at least as likely as not that the Veteran has post-operative residuals of a left knee injury that are related to his service. The evidence is in favor of the grant of service connection for post-operative residuals of a left knee injury. Service connection for post-operative residuals of a left knee injury is granted. 38 U.S.C.A §5107 (West 2002 & Supp. 2012). C. Timeliness of NOD The Veteran maintains that he filed a timely NOD as to the May 2004 rating decision that granted service connection for PTSD and assigned an initial 30 percent evaluation effective from January 15, 2004. Specifically, the Veteran contends that he mailed the NOD on May 19, 2005. See, e.g., April 2013 Hearing Transcript (T.) at 56. As to what constitutes an NOD, the Court has said that the Board determines de novo whether a document is an NOD. See Fenderson v. West, 12 Vet. App. 119 (1999); Beyrle v. Brown, 9 Vet. App. 24, 27-28 (1996). In this regard, an NOD is a written statement reasonably expressing disagreement with and a desire to contest any aspect of the adjudication(s). 38 C.F.R. § 20.201. An NOD requires no special wording or phrasing and is to be evaluated within the context of the overall record. Id; see also Jarvis v. West, 12 Vet. App. 599, 561-62 (1999). As to what constitutes a timely NOD, applicable regulations provide that it must be filed within one year of the agency of original jurisdiction providing the claimant with notice of the determination otherwise the decision(s) will become final, absent an applicable provision to the contrary. See 38 U.S.C.A. § 7105(b); 38 C.F.R. § 20.302(a). As to when an NOD is considered received by the RO, 38 C.F.R. § 20.305(a) (the 'mailbox rule') provides that a response postmarked prior to the expiration of the applicable time limit will be accepted as having been timely filed. In the event that the postmark is not of record, the mailbox rule applies and the postmark date will be presumed to be five days prior to the date of receipt of the document by VA. In calculating this five day period, Saturdays, Sundays, and legal holidays will be excluded. Id. Regulations also provide that the one year does not include the date the claimant receives notification of the AOJ determination but does include the last date of the one year period. See 38 C.F.R. § 20.305(b). In addition to this regulatory mailbox rule, there is a common law mailbox rule. Under the common-law mailbox rule, if a letter properly directed is proved to have been either put into the post office or delivered to the postman, it is presumed, from the known course of business in the post office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed. Rios v. Nicholson, 490 F.3d 928, 930-31 (Fed. Cir. 2007). In Rios v. Peake, 21 Vet. App. 481 (2007) (Rios II), the Court noted that the presumption of receipt permitted under the common law mailbox rule was not invoked lightly. "It requires proof of mailing, such as an independent proof of a postmark, a dated receipt, or evidence of mailing apart from a party's own self-serving testimony." Id. at 482-83. Based on a review of the evidence, the Board concludes that the NOD as to the initial disability rating assigned was not timely. The May 2004 rating decision granting service connection for PTSD as 30 percent disabling effective from January 15, 2004, was mailed to the Veteran on May 24, 2004. Therefore, the Veteran had until May 24, 2005, to file an NOD. An NOD as to the 30 percent evaluation assigned was date stamped as being received at the RO on June 3, 2005. The Veteran dated his NOD May 19, 2005. Throughout this appeal, he has repeatedly reported that he mailed the NOD on May 19, 2005. See, e.g., June 2005 NOD as to the timeliness issue; T. at 56. The Veteran has not submitted any independent proof such as postmark, a dated receipt, or evidence of mailing apart from his own self-serving testimony. The envelope containing the NOD is not of record. A September 2007 email exchange from personnel at the RO shows that envelopes that mail comes in are not saved and that the only item stamped is the mail itself. The same email exchange shows that mail is opened and stamped the day it is received at the RO. As noted above, VA's mailbox rule provides that in the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by VA. 38 C.F.R. § 20.305(a). In calculating this five day period, Saturdays, Sundays, and legal holidays will be excluded. Id. Since the NOD was stamped as being received on June 3, 2005, applying VA's mailbox rule, the postmark date is presumed as being May 26, 2005, as five days before is May 29, 2005, which was a Sunday and that Monday was the legal holiday of Memorial Day. See 38 C.F.R. § 20.306 (2012). Therefore, excluding weekends and legal holidays, the presumed postmark date according to 38 C.F.R. § 20.305(a) is May 26, 2005. A timely NOD needed to be postmarked by May 24, 2005. As such, the NOD is not timely. The Board has also considered the common law mailbox rule, but still finds that the NOD is not timely. The Board has weighed the Veteran's statements that he mailed the NOD on May 19, 2005, against the physical evidence of record showing that it was received by VA on June 3, 2005, and places greater probative value on the physical evidence rather than the Veteran's recollections. He has made no proof of mailing except his own testimony. On the other hand, the VA date stamp, indicates that the mailing was later. As already noted above, in Rios II, the Court noted that the presumption of receipt permitted under the common law mailbox rule "requires proof of mailing, such as an independent proof of a postmark, a dated receipt, or evidence of mailing apart from a party's own self-serving testimony." Id. at 482-83. While the Veteran has repeatedly reported that he mailed his NOD on May 19, 2005, pursuant to the Court's holding in Rios IIļ the Board concludes that absent evidence other than the Veteran's contentions, the NOD was not timely filed under the common low mailbox rule. Therefore, after reviewing all of the evidence, the Board concludes that the NOD as to the initial rating assigned to the Veteran's PTSD was not timely. D. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7. Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. Where there is a question as to which of two ratings should be applied, 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. The Court has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App 505 (2007). As discussed in detail below, the Board concludes that a staged rating is not warranted. The Veteran contends that he is entitled to a rating in excess of 70 percent for the service-connected PTSD due to the severity of his symptomatology. For the reasons set forth above, the Board concludes that the NOD for the initial rating assigned was not timely filed. The RO treated such NOD as a claim for an increased rating. Accordingly, the Board will do the same and will evaluate the Veteran's disability from the period beginning one year prior to the June 2005 claim. See 38 C.F.R. § 3.400 (2012). This service-connected disability is rated as 70 percent disabling under 38 C.F.R. § 4.130, DC 9411, which evaluates impairment from PTSD. Specifically, pursuant to DC 9411, a 70 percent evaluation is warranted if the evidence establishes there is 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. 38 C.F.R. § 4.130, DC 9411 (2012). A 100 percent evaluation is warranted if the evidence establishes there is 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 oneself 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. Id. The list of symptoms in the rating formula is not intended to constitute an exhaustive list, but rather shows examples of the types and degrees of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2012). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). 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 Carpenter v. Brown, 8 Vet. App. 240 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV). A GAF score of 61 to 70 is indicative of some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. A GAF score of 51 to 60 is indicative of 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 co-workers). A GAF score of 41 to 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 31 to 40 is indicative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). Based on the evidence of record, the Board concludes that a rating in excess of 70 percent is not warranted at any time during the pendency of this appeal. Throughout this appeal, the pertinent evidence record has not shown 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 oneself or others; intermittent inability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. VA treatment records dated from May 2005 to December 2005 show that the Veteran had GAF scores ranging from 45 to 50. In May 2005, the Veteran reported that he had no close friends in the area that he associated with; he had some in other areas that he talked with on the phone. He had been married to his current wife since 1979. He worked at home as a stockbroker. Although his memory was reported to be poor in these records, memory loss for names of close relatives, own occupation, or own name was not shown. These records do not reveal the symptoms akin to those supporting a 100 percent evaluation. Total occupational and social impairment was not shown. The Veteran was shown to have friends, was married and employed. Accordingly, a 100 percent evaluation based on these records is not warranted. A VA examination in May 2006 fails to show that the Veteran's PTSD causes total occupational and social impairment. The Veteran dated the beginning of suicidal rumination to Hurricane Katrina and his service-connected diabetes. The Veteran reported that his family laughed that he would ask the same question within a short period of time; he had no memory of having asked the same question before. He had frequent failures of memory. He had not worked much since Hurricane Katrina. He did not describe any meaningful social relations. He did show some interest in his ten-year-old son. He spoke some with his wife. Examination revealed that his dress was certainly casual, suggesting of very little interest in self-presentation. He did not seem fully involved. He was fully oriented with a clear sensorium and rational without psychotic features. Speech was loosely relevant and fluent; poor judgment was shown by going on about many unnecessary details; and he did not focus and move toward a goal in speech very well. There was some impairment of communication. Mood was chronically and severely depressed; affect was largely nonreactive and showed a numbing of feelings; he expressed indifference and lack of involvement; memory and concentration were markedly impaired; insight was fair and judgment was not active, but was intact. The examiner opined that the Veteran's PTSD was severe with marked depression. A GAF score of 38 was assigned. This examination fails to show that the Veteran has total occupational and social impairment. He had relationships with his wife and son. Although he was not working much, he reported that it was since Hurricane Katrina and not necessarily due to his PTSD. While he had markedly impaired memory, other symptoms indicative of total impairment such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting oneself or others; intermittent inability to perform activities of daily living; disorientation to time or place were not shown. Although the examiner indicated that his dress suggested very little interest in self-presentation, this examination does not show an inability to perform activities of daily living. Therefore, this examination does not support a 100 percent rating. Treatment records dated from July 2006 to February 2009 indicate GAF scores ranging from 41 to 48. Symptoms akin to those for a 100 percent rating were not shown. His memory continued to be poor. He was still married and had a relationship with his son. The symptomatology shown in these treatment records does not indicate total occupational and social impairment. None of his treatment providers rendered such an opinion. Although his memory was poor, the records do not suggest such impairment as contemplated for by a 100 percent rating such as memory loss for names of close relatives, own occupation, or own name. The overall symptoms shown in these records does not show that the Veteran's PTSD warrants a 100 percent rating. The Veteran was afforded another VA examination in April 2009, which again indicates that a rating in excess of 70 percent is not warranted. He reported being self-employed as an investment advisor and that he lost his clients after Hurricane Katrina. He was tired of going out and looking for clients and having to build his business back up, so he had not done it. He reported some socialization; he went to a party in December with his wife and they had gone to the movies. The Veteran had a typical relationship with his teenage son and a good relationship with his other two adult children. His marriage was okay and he had been married for nearly 30 years. He maintained his own activities of daily living. Examination revealed that he was alert, attentive and oriented to person, place, time and situation. There was no abnormality of posture and psychomotor activity was within normal limits. Speech functions were appropriate for rate, tone, volume, prosody and fluency with no evidence of paraphrasic errors. Mood was somewhat depressed; affect was appropriate to verbal content and context; memory functions were grossly intact with respect to immediate and remote recall of events and factual information; thought processes were goal-directed; and thought content was within normal limits. There was no evidence of perceptual disorder. He reported suicidal ideation without plan or intent and denied homicidal ideation. He was appropriately dressed and groomed; denied any substance abuse; and judgment appeared intact. The Veteran appeared capable of managing funds. The examiner opined that there was no evidence that his symptoms would keep him from being able to work. His social functioning, while limited, appeared adequate. A GAF score of 60 was assigned. The examiner also opined that the Veteran's symptoms appeared to be falling in the moderate range. There was no evidence of significant industrial impairment from his symptoms. Additionally, there was no evidence that he was grossly impaired in a social aspect that would hinder him from working with others. This examination also does not indicate that the Veteran has total occupational and social impairment. None of the symptoms associated with a 100 percent rating were demonstrated on examination. As the examiner opined that the Veteran's symptoms would not keep him from working and that he had adequate social functioning, the results of this examination do not suggest that a 100 percent disability rating is warranted. In June 2009, the Veteran reported that he lost a lot of good jobs and relationships because he was unable to control his temper. He complained that his memory was poor. A GAF score of 43 was assigned. Treatment records dated from August 2009 through December 2011 show GAF scores of 45. These records do not show total social and occupational impairment, nor do they show symptoms akin to such impairment, even with the Veteran's reported poor memory. Consequently, such records do not support a finding of a 100 percent rating. A January 2012 VA examination reflects that the Veteran had a GAF score of 65. The examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran described his mood as angry and depressed. His affect was flat. Examination revealed symptoms of depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; and disturbances of motivation or mood. The examiner opined that results from that examination suggested no evidence that his current symptoms would impair his ability to perform any type of work. There was no evidence that he was impaired in any social aspect that would prevent him for working with others. As with previous VA examinations, this examination fails to show the symptoms contemplated for by a 100 percent rating. This examination also does not reveal that the Veteran has total occupational and social functioning. Rather, the examiner indicated that the Veteran's symptoms would not impair his ability to work and that there was no evidence that he was impaired in any social aspect that would prevent him from working with others. Therefore, total occupational and social impairment has not been shown. Indeed, the examiner did not opine as such, but instead opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The totality of the evidence shows that the Veteran's service-connected PTSD does not cause 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 oneself or others; intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Although the Veteran was shown to have poor memory throughout this appeal, memory loss for names of close relatives, own occupation, or own name of was not shown. The overall evidence fails to show that such symptom, in connection with the other symptoms shown during this appeal, equates to total occupational and social impairment. In reaching the conclusion that a rating in excess of 70 percent is not warranted, the Board notes that the reported GAF scores of 60 and 65 are indicative of some mild and moderate symptoms, which are not consistent with the currently assigned 70 percent rating. However, most of the Veteran's scores during this appeal have ranged from 41 to 50, which are indicative of serious symptoms, consistent with the currently assigned 70 percent rating. The Veteran has also been shown to have scores as low as 38, indicative of some impairment in reality testing or communication or major impairment in several areas, which is not consistent with a rating of 70 percent. However, the Board also notes that, while important, the GAF scores assigned in a case are not dispositive of the evaluation and must be considered in light of the actual symptoms of the Veteran's disorder. See 38 C.F.R. § 4.126(a). In this case, the extent and severity of the Veteran's actual PTSD reported and/or shown are suggestive of 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; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and the inability to establish and maintain effective relationships; i.e., the level of impairment contemplated in the assigned 70 percent rating for psychiatric disabilities. For these reasons, the Board finds that the criteria for a rating in excess of 70 percent for PTSD have not been met. Furthermore, the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability. 38 C.F.R. § 4.1. The Board notes that in exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the Veteran's PTSD symptoms and disability level. Marked interference with employment beyond that contemplated by the schedular criteria has not been shown. The record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability. The evidence does not show that the Veteran's PTSD has resulted in interference with employment or activities of daily life which would warrant a rating in excess of 70 percent. ORDER New and material evidence having been received, the claim for service connection for a left knee disorder is reopened. Entitlement to service connection for post-operative residuals of a left knee injury is granted. A NOD was not timely filed as to a May 20, 2004, rating decision granting service connection for PTSD assigning a 30 percent rating effective from January 15, 2004. The appeal is denied. Entitlement to a rating in excess of 70 percent for PTSD is denied. REMAND Regrettably, a remand is necessary for the issues of service connection for left shoulder and back disorders, hypertension and entitlement to a TDIU. Regarding his left shoulder, the Veteran contends incurring an injury in a pugil stick fighting competition. See, e.g., T. at 3. As for his back, the Veteran contends that he injured his back during jump school as he had problems with jumping due to his left knee injury. See, e.g., June 2004 claim. Buddy statements received in August 2004 and October 2004 confirm the Veteran's reports of in-service back problems, a left shoulder injury and continuous pain thereafter. Throughout this appeal, the Veteran has reported having a continuity of symptomatology. The Veteran was afforded a VA examination in January 2008. He was diagnosed with degenerative joint disease of the left shoulder and degenerative disc disease of the lumbar spine. Negative nexus opinions were provided for both disorders. The examiner's rationale for the left shoulder opinion was that there was no evidence of continuity of care or chronicity. For the back, the examiner opined that it was not caused by the claimed difficulty getting up from bed and straightening up during service. The Board finds that the opinions are not adequate. Initially, the Board concedes that the Veteran incurred a left shoulder injury in a pugil fighting competition as well as injuring his back during jump school. Throughout this appeal, the Veteran has reported a continuity of symptomatology. In providing a negative nexus opinion for the left shoulder, the examiner relied on a lack continuity or chronicity, despite the Veteran's reports of having a continuity of symptomatology. Therefore, since the examiner failed to address the Veteran's reports, the Board finds that such opinion lacks probative value. As for the Veteran's back, the claimed injury occurred during jumping school; the examiner provided an opinion regarding an injury of difficulty getting up from bed and straightening up during service. Although buddy statements did reference such problems, the Board is conceding back problems during jump school. An opinion is necessary to determine whether the Veteran has a current back disorder related to his reported onset of back problems in jump school. Therefore, a new VA examination for the left shoulder and back is required. As for the Veteran's hypertension, in addition to service connection on a direct basis, the Veteran also contends that it is secondary to his service-connected diabetes mellitus, type II. A VA examination regarding service connection on a secondary basis was obtained in March 2009. The examiner opined that it was less likely as not caused or related to diabetes; however, the examiner did not provide an opinion as to aggravation. Therefore, the opinion is not adequate and a new VA examination is necessary. Additionally, regarding service connection on a direct basis, the Veteran contends that it is due to herbicide exposure. Although hypertension is not a disability presumptively related to herbicide exposure, the Veteran did submit an article indicating that there is suggestive but limited evidence that herbicides are associated with an increased chance of developing high blood pressure in some veterans. Since herbicide exposure has been conceded due to the Veteran's service in the Republic of Vietnam, on remand, an opinion as to such theory of entitlement should also be obtained. Lastly, the Veteran's TDIU claim is inextricably intertwined with the service connection issues being remanded as it is possible that one or more claims could be granted service connection. The appropriate remedy where a pending claim is inextricably intertwined with claim currently on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Consequently, a remand of the TDIU claim is also necessary. The most recent VA treatment records from the VA Medical Center (VAMC) in Biloxi, Mississippi are dated in February 2012. On remand, records of any VA treatment that the Veteran received since then should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of post-service treatment that the Veteran has recently received. The Board is particularly interested in records of treatment that the Veteran may have received from the Biloxi VAMC. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 2. Obtain an addendum medical opinion from the January 2008 VA joints examiner (or, if unavailable, from a medical professional with appropriate expertise). The Veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the opinion. The examiner is requested to review the record and offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed left shoulder and back disorders had their clinical onset in service or are otherwise related to service. The examiner is direct to accept the Veteran's reports of an in-service left shoulder injury during a pugil stick fighting competition and an in-service back injury during jump school. The examiner's opinion should take into account the Veteran's contentions of a continuity of left shoulder and back symptomatology following the in-service injuries. A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 3. Obtain an addendum medical opinion from the March 2009 VA diabetes mellitus, type II examiner (or, if unavailable, from a medical professional with appropriate expertise). The Veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the opinion. The examiner is requested to review the record and offer an opinion as to whether the Veteran's hypertension is aggravated (permanently worsened beyond normal progression) by the service-connected diabetes mellitus, type II. The examiner should also offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that hypertension is directly related to herbicide exposure. A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 4. Ensure that the examination reports comply with (answer the questions posed in) this Remand. If any report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 5. Then, readjudicate the issues on appeal. If any benefit remains denied, the Veteran should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. The Veteran 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs