Citation Nr: 1329266 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 08-28 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a skin disorder of the feet. 2. Entitlement to service connection for sensory and neurological impairment, to include as secondary to degenerative disc disease of the thoracolumbar spine. 3. Entitlement to an evaluation in excess of 10 percent for degenerative disc disease of the thoracolumbar spine. 4. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) with depression. 5. Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 7. Entitlement to an effective date earlier than February 1, 2008, for the grant of entitlement to service connection for PTSD with depression. 8. Entitlement to a separate evaluation for depression secondary to degenerative disc disease. REPRESENTATION Appellant represented by: Polly Murphy, Attorney at Law ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to December 1970 and from September 1971 to March 1973. This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The procedural history in this case is complex, and the Board will outline the posture of each issue on appeal separately. PTSD/depression The Veteran first sought service connection for PTSD in July 2000. In April 2002, the RO denied the claim. The Veteran failed to submit a timely notice of disagreement and the decision became final. The RO continued the denial of the PTSD claim in June 2003 and November 2006. The Veteran filed a notice of disagreement in February 2007 and the RO issued a statement of the case dated in April 2007. The Veteran did not file a substantive appeal with this decision and it became final. The Veteran filed a subsequent claim for PTSD on February 1, 2008, which was denied in December 2008. The Veteran submitted his disagreement in March 2009. A statement of the case was in September 2009 and a substantive appeal was filed in November 2009. In January 2010, the RO granted service connection for depression, evaluated as 50 percent disabling effective December 4, 2009. In September 2010, the Board reopened and granted entitlement to service connection for PTSD, which was effectuated in an October 2010 RO decision that combined his service-connected PTSD and depression into one service-connected disorder, PTSD with depression, evaluated as 50 percent disabling. In a statement submitted in November 2010, the Veteran disagreed with the evaluation for service-connected PTSD with depression, the effective date for the grant of service connection for PTSD, and the decision to combine the Veteran's psychiatric claims into one service-connected disability. The RO issued a statement of the case in February 2011 and the Veteran submitted a substantive appeal on this issue in April 2011. Skin Disorder of the feet The Veteran first sought service connection for a skin rash of the feet (claimed as a "foot problem") in July 2000. The claim was denied in April 2002 in an unappealed rating action. In February 2008, the Veteran sought to reopen the claim, and this petition was denied in a December 2008 rating decision. An appeal on this issue was perfected with the submission of a VA Form 9 in November 2009. Lumbar spine The Veteran's degenerative joint disease of the thoracolumbar spine, earlier characterized as lumbar back pain, was granted in an April 2002 rating decision. A 10 percent evaluation was assigned. The Veteran did not appeal that initial evaluation. In November 2006, the 10 percent rating for the Veteran's lumbar spine disability was continued. The Veteran filed a notice of disagreement dated in February 2007, and the RO issued a statement of the case dated in April 2007. In May 2007, the RO denied service connection for a disability of the thoracic spine. In August 2007 the Veteran submitted a communication that was labeled as a notice of disagreement as to the denial of service connection for a thoracic spine disability. However, that letter actually expressed disagreement with the rating assigned for service-connected the lumbar spine disability. As this document was received within one year of the November 2006 action denying an increased rating, it will be accepted as a substantive appeal on that issue. The matter came before the Board in August 2010 and was remanded at that time. Sensory and Neurologic Impairment In February 2009, the RO denied entitlement to service connection for sensory and neurological impairment. The Veteran filed a notice of disagreement dated in March 2009 and the RO issued a statement of the case dated in October 2009. The Veteran filed a substantive appeal in December 2009. The matter came before the Board in August 2010 and was remanded at that time. TDIU In December 2008, the RO denied entitlement to individual unemployability. The Veteran filed a notice of disagreement dated in March 2009 and the RO issued a statement of the case dated in September 2009. A substantive appeal was filed in November 2009. The matter was remanded by the Board in September 2010. Diabetes mellitus In April 2012, the RO granted entitlement to service connection for diabetes mellitus type II with erectile dysfunction and evaluation the condition as 20 percent disabling. The Veteran filed a notice of disagreement with the evaluation dated in June 2012 and the RO issued a statement of the case dated in October 2012. The Veteran filed a substantive appeal dated in December 2012. In April 2012, the RO also granted entitlement to service connection for peripheral neuropathy of the right and left lower extremities as secondary to service-connected diabetes mellitus. In September 2010, the Board reopened and granted entitlement to service connection for PTSD and denied entitlement to a higher evaluation for bilateral hearing loss. The claims of new and material evidence for a skin disorder of the feet, an evaluation in excess of 10 percent for degenerative disc disease of the thoracolumbar spine, service connection for sensory and neurological impairment, to include as secondary to degenerative disc disease of the thoracolumbar spine, and individual unemployability were remanded for further development. All issues on appeal In January 2013, the issues of new and material evidence for a skin disorder of the feet, service connection for sensory and neurological impairment, an evaluation in excess of 10 percent for degenerative disc disease of the thoracolumbar spine, an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) with depression, entitlement to individual unemployability, entitlement to an effective date earlier than February 1, 2008, for the grant of entitlement to service connection for PTSD with depression, and entitlement to a separate evaluation for depression secondary to degenerative disc disease, were remanded so that the Veteran may be afforded an opportunity testify before the Board. Since the issuance of the most recent supplemental statements of the case addressing the issues in this case, the Veteran submitted medical evidence relevant to his claims. This evidence was accompanied by a waiver of initial RO consideration. This evidence will be reviewed by the Board when considering the Veteran's claims. Here, the Veteran has claimed entitlement to a separate evaluation for depression. Service connection is in effect for PTSD with depression. In this regard, the Board notes that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran's increased rating claims remain in controversy because the ratings remain less than the maximum available benefit awardable. See AB v. Brown, 6 Vet. App. 35, 38 (1993); Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that, in addition to the physical claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claims based upon all relevant evidence. The issues of entitlement to higher evaluations for service- connected degenerative disc disease of the thoracolumbar spine and PTSD with depression, service connection for sensory and neurological impairment, to include as secondary to degenerative disc disease of the thoracolumbar spine, a separate evaluation for depression, and individual unemployability 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. In May 2013 testimony before the Board, the Veteran indicated that he wished to withdraw his application to reopen a claim of entitlement to service connection for a skin disorder of the feet. 2. In April 2002, the RO denied entitlement to service connection for PTSD; the Veteran failed to submit a timely notice of disagreement and the decision became final; the RO continued the denial of the claim, citing no new and material evidence, in June 2003 and November 2006; the Veteran filed a notice of disagreement in February 2007 and the RO issued a statement of the case dated in April 2007; the Veteran did not file a substantive appeal with this decision and it became final. 3. On February 1, 2008, the Veteran filed a request to reopen the previously denied claim for service connection for PTSD and, upon review of additional probative evidence, the Board, in September 2010, reopened the claim and granted service connection. In an October 2010 rating decision, the RO implemented the award, assigning an effective date of February 1, 2008. 4. In February 2009, subsequent to the last final denial of the PTSD claim, official service records were received that are relevant to the claim. 5. Type II diabetes mellitus is currently treated and controlled through insulin medication and a restricted diet, but does not require regulation of physical activities as part of its medical management. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran (or his or her representative) concerning the issue of claim of new and material evidence for a skin disorder of the feet, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for an effective date of July 21, 2000, for the grant of service connection for PTSD have been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.158, 3.400 (2012). 3. The criteria for an evaluation in excess of 20 percent for Type II diabetes mellitus have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of claim. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202, 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In this case, in May 2013 testimony before the Board, the Veteran indicated that he wished to withdraw his application to reopen a claim of entitlement to service connection for a skin disorder of the feet. Based on the foregoing, the Board finds that there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the claim, and it is dismissed. II. VCAA. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's diabetes mellitus claim arises from an appeal of an initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under the VCAA as to this issue. Similarly, with respect to the effective date claim, VA's General Counsel has held that no additional VCAA notice is required in this circumstance, as it is deemed a downstream issue. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). The Board is bound by the General Counsel's opinion, as the Chief Legal Officer of the Department. 38 U.S.C.A. § 7104(c). Instead of issuing an additional VCAA notice letter in this situation concerning the downstream earlier- effective-date claims, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved. And since the RO issued a SOC addressing the downstream effective-date claim, which included citation to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning an effective date earlier than February 1, 2008, for the increased rating, no further notice is required. See also Goodwin v. Peake, 22 Vet. App. 128 (2008) and Huston v. Principi, 17 Vet. App. 195 (2003). Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a May 2013 before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. Further regarding the duty to assist, in May 2013, the Veteran, accompanied by his representative, testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of these proceedings has been associated with the Veteran's virtual claims file. Concerning the hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the individual who chairs a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked. In the present case, the undersigned fully identified the issues on appeal and asked specific questions directed at identifying any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding and might substantiate the claim currently on appeal. Additionally, neither the Veteran nor his representative has 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, there is compliance with the duties set forth in 38 C.F.R. § 3.103(c)(2). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). III. Earlier effective date for the grant of service connection for PTSD. An effective date of February 1, 2008, is currently in effect for the award of service connection for PTSD. In written and oral statements in support of his claim, the Veteran has argued that July 14, 2000, when he initially applied for service connection, is the more appropriate date for his award. The Veteran originally filed a claim of service connection for PTSD in a statement received at the RO on July 21, 2000. In April 2002, the RO denied the claim. The Veteran failed to submit a timely notice of disagreement and the decision became final. The RO continued the denial of the claim, citing no new and material evidence, in June 2003 and November 2006. The Veteran filed a notice of disagreement in February 2007 and the RO issued a statement of the case dated in April 2007. A substantive appeal was not filed and the decision became final. The Veteran filed a subsequent claim of service connection for PTSD on February 1, 2008. The RO again denied the claim in December 2008 and the Veteran submitted his disagreement in March 2009. The RO issued a statement of the case in September 2009 and the Veteran filed his substantive appeal in November 2009. In September 2010, the Board reopened and granted entitlement to service connection for PTSD. If the Veteran filed a claim of service connection for the disability at issue within one year of his separation from service, and the claim is granted, then he is entitled to an effective date retroactive to the day following his discharge from service. See 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). In this case, the Veteran, who served on active duty in the military from January 1968 to December 1970 and from September 1971 to March 1973, did not file a claim of service connection for PTSD within one year of his discharge from service and has not alleged otherwise. If a claim (once filed) is denied and not timely appealed, then the earliest possible effective date is the date on which a petition is filed to reopen the claim on the basis of new and material evidence. The proper effective date for new and material evidence other than service treatment records received after a final disallowance is the date of receipt of the claim to reopen or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(i); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). Further concerning effective dates for reopened claims, the Court has held that the rule of finality regarding an original claim implies that the date of that claim is not to be a factor in determining an effective date if the claim is later reopened. The Court held that the term "new claim," as it appears in 38 C.F.R. § 3.400(q)(1)(ii), means a claim to reopen a previously and finally denied claim. The statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002); see also Livesay v. Principi, 15 Vet. App. 165, 172 (2001) (holding that the plain meaning of § 5110 to be that "the phrase 'application therefore' means the application which resulted in the award of disability compensation that it to be assigned an effective dated under section 5110."); Cook v. Principi, 258 F.3d 1311, 1314 (Fed. Cir. 2001) (affirming assignment of an effective date for a service-connection award based upon the reopened claim as the date on which the Veteran "first sought to reopen his claim"). As noted above, based on the procedural history detailed above, the effective date of February 1, 2008, representing the date that the Veteran filed the request to reopen the previously denied claim, would generally be the appropriate date for assignment of the award of service connection. In this case, however, an exception applies. Since the time of the last final denial in November 2006, the Veteran's service records were added to the file. This occurred in February 2009. In this regard, pursuant to 38 C.F.R. § 3.156(c)(1), "if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim." Additionally, "[a]n award made based all or in part on the records identified in paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later..." 38 C.F.R. § 3.156(c)(3). Here, the service treatment records include a report of medical history associated with the Veteran's discharge (although the date is difficult to read, it appears to have been conducted in 1973). That report reflects complaints of depression/excessive worry and frequent trouble sleeping. Thus, the service records are found to be relevant to the instant claim. While it is true that the Board in September 2010 did not rely on those records in reopening and granting the claim of PTSD, this is beside the point. Indeed, had those records been available when the Veteran had pursued his prior claims, the outcome could have been impacted by such evidence. The Board notes that revisions were made to 38 C.F.R. § 3.156(c) and 3.400(q), effective on October 6, 2006. 38 C.F.R. § 3.156(c) was revised to establish clearer rules regarding reconsideration of decisions on the basis of newly discovered service department records. The substance of 38 C.F.R. § 3.400(q)(2) is now included in the revised § 3.156(c). Prior to the revision, § 3.400(q)(2) governed the effective date of benefits awarded when VA reconsidered a claim based on newly discovered service department records. The prior 3.400(q)(1) is redesignated as new § 3.400(q)(1) and (2) without substantive change. See 70 Fed. Reg. 35388 (2005). The Board finds that under either version of 38 C.F.R. § 3.156(c), an earlier effective date is warranted. Thus, an exception to the general rule applies here, and the effective date of July 21, 2000, the date of the RO's receipt of the Veteran's original claim for PTSD is hereby awarded. It is recognized that the Veteran requested an effective date of July 14, 2000, representing the day he filled out and signed the application for benefits- however, that application is clearly date-stamped as received by VA on July 21, 2000, and thus that date is controlling. Finally, at the May 2013 hearing, the Veteran's representative raised a contention of CUE in the initial April 2002 rating decision. However, the instant decision has the effect of undoing the finality of the decision. Accordingly, such CUE claim is now deemed moot. In sum, based on the submission of relevant service records, pursuant to 38 C.F.R. § 3.156(c), an earlier effective date of July 21, 2000, for the award of service connection for PTSD is granted. There is no support for an earlier-still effective date, nor has the Veteran contended that an award of service connection prior to July 2000 is warranted. IV. Increased rating for diabetes mellitus type II. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Veteran's service-connected Type II diabetes mellitus with erectile dysfunction is currently rated 20 percent disabling under the criteria contained in 38 C.F.R. § 4.119, Diagnostic Code 7913. A 20 percent evaluation contemplates diabetes mellitus requiring insulin and restricted diet; or oral hypoglycemic agent and restricted diet. The next higher rating of 40 percent requires insulin, restricted diet, and regulation of activities. 38 C.F.R. § 4.119, Diagnostic Code 7913. For the reasons set forth below, the Board finds that the criteria for a rating in excess of 20 percent have not been met in this case. The medical evidence in this case consists of outpatient treatment records, a VA examination dated in February 2012, and the Veteran's testimony before the Board in May 2013. The Veteran has been prescribed insulin and oral medical, and has been placed on a regulated diet. The evidence does not indicate, however, that the Veteran's diabetes mellitus is treated with a regulation of activities. Applying the facts of the case to the applicable rating schedule, the Board finds that the Veteran's Type II diabetes mellitus is manifested throughout the entire appellate period by impairment that does not meet the criteria for an evaluation greater than 20 percent under Diagnostic Code 7913. Although he requires insulin and a restricted diet to control his diabetes, the objective medical evidence does not demonstrate that he requires regulation of his physical activities as part of medical management of his diabetes mellitus, as contemplated in the criteria for a 40 percent evaluation under Diagnostic Code 7913. His claim for a rating increase above 20 percent for Type II diabetes mellitus must therefore be denied. Because the evidence in this case is not approximately balanced with respect to this issue, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has also considered whether additional staged ratings under Fenderson, supra, are appropriate; however, the Board finds that his symptomatology was stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. In addition, with respect to the Veteran's claim, the Board has also considered the statements that his disability is worse than evaluated. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through the senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability for his condition, according to the appropriate diagnostic codes. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which the disability is evaluated. Finally, the record does not establish that the schedular criteria are inadequate to evaluate the Veteran's disability so as to warrant assignment of a higher evaluation on an extra-schedular basis. Indeed, the schedule provides an assignment in excess of the Veteran's present 20 percent rating, but the criteria associated with that higher evaluation have not been demonstrated. As such, an extraschedular evaluation is not for application. See 38 C.F.R. § 3.321; Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER The petition to reopen a claim of entitlement to service connection for a skin disorder of the feet is dismissed. An effective date of July 21, 2000, for the award of service connection for PTSD is granted. An initial evaluation in excess of 20 percent for diabetes mellitus type II is denied. REMAND Regarding the remaining issues on appeal, additional development is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). First, with respect to the claim for a higher evaluation for service-connected PTSD with depression, the Board notes that the last examination for this disorder is dated in December 2009, nearly four years ago. The file contains evidence suggesting that the disorder has worsened since that time. Furthermore, as the Veteran is also seeking a separate award of service connection for depression (as distinguished from his PTSD), an examiner must consider whether the two disorders have completely overlapping symptoms or rather have distinct and separate manifestations. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Regarding the lumbar spine claim, the last examination was performed in November 2009. The Board thus finds that a new examination would be helpful in order to record accurate findings regarding his current level of severity. Moreover, the Veteran also claims that he has a sensory and neurological disability related to his degenerative disc disease. He has testified that his legs hurt, that he has pain that shoots down the back of both legs (left worse than right) and that he has numbness on the top of his left leg. (Tr. At 34-35). In this regard, the Board notes that service connection has been granted for peripheral neuropathy of the left and right lower extremities secondary to service-connected diabetes mellitus type II. Thus, the examiner must also determine whether the Veteran has any neurological disability apart from the service-connected peripheral neuropathy, that is due to his service-connected back disability. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Finally, with respect to the Veteran's individual unemployability claim, total disability will be considered to exist where there is impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340; 4.16. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Factors to be considered are the Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that in determining whether the Veteran is entitled to a total disability rating based upon individual unemployability neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. See Friscia v. Brown, 7 Vet. App. 294 (1995). The Court stressed that VA has a duty to supplement the record by obtaining an examination which includes an opinion on what effect the appellant's service-connected disabilities have on his ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a). In this case, the Veteran has met the schedular percentage criteria for a total disability rating based on individual unemployability. In addition, the record shows that he is currently unemployed and has testified that his service- connected disabilities, to include his back disability and his PTSD, were among the causes of his termination of employment. As such, the Veteran should be afforded a VA examination in order to determine whether he is currently unemployable due to his service-connected disabilities. Upon remand, updated medical should be associated with the claims file, including updated treatment records from VA. The Veteran should be afforded an opportunity to submit additional medical evidence relevant to his claim that may not be associated with the claims file. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must obtain identified outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c) (West 2002); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to contact the Veteran and request that he identify all VA and non-VA healthcare providers that have treated him since service for his claimed disabilities. This should include updated treatment records from VA. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The Veteran should be afforded a VA examination in order to assess the current nature and severity of his service- connected degenerative disc disease of the thoracolumbar spine. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must state that the examination report that the claims file was reviewed. The examiner should conduct complete range of motion studies and discuss the presence or absence of any weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, pain with use, and provide an opinion as to how these factors result in any limitation of motion. The examiner should also indicate whether pain affects some aspect of the normal working movements of the body, such as excursion, strength, speed, coordination, and endurance. If the Veteran describes flare-ups of pain, the examiner should offer an opinion as to whether there would be additional limits on functional ability during flare-ups, and if feasible, express this in terms of additional degrees of limitation of motion during the flare-ups. The examiner should also state whether the Veteran has had any prostrating attacks in the last 12 months, whether the back disability causes radiculopathy in either lower extremity and, if so, whether such radiculopathy best characterized as incomplete and mild paralysis, incomplete and moderate paralysis, incomplete and moderately severe paralysis, incomplete and severe paralysis, or complete paralysis. In this regard, the examiner should specifically comment on whether the Veteran has any neurological disability not related to (with separate symptomatology from) the service- connected peripheral neuropathy, that is caused by, secondary to, or aggravated (made permanently worse beyond its natural progession) by his service-connected back disability. The examiner should also indicate the effect the disability has, if any, on the Veteran's current level of occupational impairment. Specifically, the examiner should render an opinion as to whether the service-connected disability causes marked interference with employment, or the need for frequent periods of hospitalization. A complete rationale for all opinions expressed must be included in the examination report. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 3. Afford the Veteran a VA examination in order to assess the current severity of his PTSD. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must note in the examination report that the claims file was in fact made available for review in conjunction with the examination. The examination report should include a description of the Veteran's symptoms, clinical findings and associated social and industrial impairment that has been and is attributed to his service-connected PTSD with depression. In providing the requested medical opinions, the examiner should provide medical findings in terms consistent with the current criteria for rating mental disorders under 38 C.F.R. § 4.130, Diagnostic Code 9411, should assign a Global Assessment of Functioning score, and should explain the meaning of the numerical score assigned to the Veteran's PTSD. The examiner should specifically comment on and list all of the Veteran's symptoms related to his service-connected PTSD, not just those set forth in the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, and make a determination as to his level of occupational and social impairment based on all of his PTSD symptoms. In addition, the examiner is asked to specifically state whether there are separate symptoms related to depression as secondary to service-connected disabilities (specifically the service- connected back disability) that are not a part of his PTSD symptomatology and, if so, state what they are and their severity under the criteria used for evaluating psychiatric disorders. All findings should be reported in detail accompanied by a complete rationale. The examiner should ensure that all testing deemed necessary is accomplished to assess the appellant's employment history, educational background, and day-to-day functioning. The examiner should also render an opinion as to whether the service-connected disability causes marked interference with employment, or the need for frequent periods of hospitalization. A complete rationale for all opinions expressed must be included in the examination report. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 4. After all outstanding records have been associated with the claims file, the Veteran should be scheduled for an appropriate VA examination in order to determine the combined impact that his service-connected disabilities have on his employability. All indicated tests and studies are to be performed. The claims folder must be made available for review of the case. A notation to the effect that this record review took place should be included in the report. The examiner is specifically directed to read the Veteran's statements and testimony before the Board. After examining the Veteran, the examiner should (a) comment generally on the functional and industrial impairment caused by his service-connected PTSD with depression, lumbar spine disability, hearing loss, and tinnitus and (b) indicate whether, without consideration of his age or nonservice-connected disabilities, the Veteran's service- connected disabilities prevent him from securing and following a substantially gainful occupation. Opinions should be provided based on the results of examination, a review of the medical and lay evidence of record, and sound medical principles. The examiner should note that consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs