Citation Nr: 1340543 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 11-15 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a cardiovascular disability. 2. Entitlement to service connection for a cardiovascular disability. 3. Entitlement to service connection for cold injury residuals of the skin and face. 4. Entitlement to service connection for sclerosis of the symphysis pubis as a residual of cold injuries. 5. Entitlement to service connection for cold injury residuals of the ankles. 6. Entitlement to service connection for arthritis of the hips. 7. Entitlement to service connection for anxiety attacks with nightmares. 8. Entitlement to service connection for prostate cancer. 9. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 10. Entitlement to an initial disability rating in excess of 20 percent for osteoarthritis of the right hand, residual of cold injury. 11. Entitlement to an initial disability rating in excess of 20 percent for osteoarthritis of the left hand, residual of cold injury. 12. Entitlement to an initial disability rating in excess of 20 percent for degenerative joint disease (DJD) of the right knee. 13. Entitlement to an initial disability rating in excess of 20 percent for DJD of the left knee. 14. Entitlement to an initial disability rating in excess of 20 percent for hallux valgus with degenerative features of the right foot, secondary to cold injury. 15. Entitlement to an initial disability rating in excess of 20 percent for hallux valgus with degenerative features of the left foot, secondary to cold injury. 16. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1943 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for a cardiovascular disability and sclerosis of the symphysis pubis, entitlement to a higher initial disability rating for hallux valgus related to residuals of cold injuries of the left and right feet, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A September 1989 rating decision denied service connection for a heart disability; the Veteran did not file a timely notice of disagreement regarding that decision, and no new and material evidence was submitted to VA within the applicable appeal period. 2. Evidence that relates to an unestablished fact necessary to substantiate the claim and that raises a reasonable possibility of substantiating the claim of service connection for a cardiovascular disability has been received since the September 1989 rating decision. 3. The Veteran does not have a currently diagnosed disability of the skin and face related to cold injury residuals. 4. The Veteran does not have a currently diagnosed disability of the bilateral ankles related to cold injury residuals. 5. The Veteran does not have a diagnosis of arthritis of the bilateral hips. 6. The Veteran does not have a currently diagnosed anxiety disorder separate from his anxiety symptoms currently addressed under his PTSD diagnosis. 7. The Veteran's prostate cancer is not causally or etiologically related to his service. 8. The preponderance of the evidence shows that the Veteran's right hand disability does not manifest with two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). 9. The preponderance of the evidence shows that the Veteran's left hand disability does not manifest with two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). 10. The preponderance of the evidence shows that the Veteran's right knee disability does not manifest with two or more of the following: tissue loss, color changes, locally impaired sensation, hyperhidrosis, X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). 11. The preponderance of the evidence shows that the Veteran's left knee disability does not manifest with two or more of the following: tissue loss, color changes, locally impaired sensation, hyperhidrosis, X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). 12. The preponderance of the evidence shows that the Veteran's PTSD is productive of no more than occupational and social impairment with reduced reliability and productivity with symptoms such as flattened affect, impairment in short and long term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, exaggerated startle response, nightmares, mild memory loss, and social isolation. CONCLUSIONS OF LAW 1. The September 1989 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2013). 2. New and material evidence has been received since the September 1989 denial of service connection for a heart disability to reopen the claim. 38 U.S.C.A. §§ 1110, 1131, 5103, 5108 (West 2002); 38 C.F.R. §§ 3.156, 3.303 (2013). 3. The criteria for service connection for cold injury residuals of the skin and face have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 4. The criteria for service connection for cold injury residuals of the bilateral ankles have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 5. The criteria for service connection for arthritis of the bilateral hips have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 6. The criteria for service connection for a separate anxiety disorder, to include anxiety attacks and nightmares, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 7. The criteria for service connection for prostate cancer have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 8. The criteria for a disability rating in excess of 20 percent for osteoarthritis of the right hand, residual of cold injury, have not been met throughout the entire period on appeal. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.104, Diagnostic Code 7211 (2012). 9. The criteria for a disability rating in excess of 20 percent for osteoarthritis of the left hand, residual of cold injury, have not been met throughout the entire period on appeal. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.104, Diagnostic Code 7211 (2012). 10. The criteria for a disability rating in excess of 20 percent for DJD of the right knee have not been met throughout the entire period on appeal. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.104, Diagnostic Code 7211 (2012). 11. The criteria for a disability rating in excess of 20 percent for DJD of the left knee have not been met throughout the entire period on appeal. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.104, Diagnostic Code 7211 (2012). 12. The criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In this decision, the Board grants reopening entitlement to service connection for a cardiovascular disability. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary regarding that issue. Additionally, the appeals for higher initial ratings arise from a disagreement with the initial evaluations following the grants of service connection. Courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required, and 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 VCAA regarding those issues. The record shows that through VCAA letters dated December 2008 and June 2009 the Veteran was informed of the information and evidence necessary to substantiate the claims for service connection. The Veteran was also advised of the types of evidence VA would assist in obtaining, as well as the Veteran's own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Further, the notice requirements apply to all five elements of a service connection claim: 1) veteran status, 2) existence of a disability, 3) a connection between the veteran's service and the disability, 4) degree of disability, and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA letters to the Veteran were provided in December 2008 and June 2009 prior to the initial unfavorable decision in August 2009. In this case, the Veteran was also advised of the criteria for rating a disability and those governing effective dates of awards in the December 2008 letter, prior to the most recent adjudication by the RO. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes VA examination reports, VA treatment records, private treatment records, service personnel records, and lay evidence. The Veteran's service treatment records were destroyed in a 1973 fire at the National Personnel Records Center. Due to the missing service treatment records, the Board recognizes its heightened obligation to consider carefully the benefit of the doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board finds that the record as it stands includes adequate evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was afforded a VA examination in March 2009. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiner was provided with an accurate history, the Veteran's complaints were recorded, and the examination report sets forth detailed examination findings. Therefore, the examination report is adequate to decide the claims of service connection and increased rating. New and Material Evidence - Cardiovascular The Veteran's claim to reopen involves a claim of entitlement to service connection for a cardiovascular disability. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A review of the record shows that a claim of service connection for a heart disability was originally denied in September 1989. The Veteran did not file a notice of disagreement regarding the September 1989 rating decision. Therefore, that decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2013). The Veteran also did not submit any information or evidence within one year of the September 1989 rating decision to render the decision non-final for VA purposes. See 38 C.F.R. § 3.156(b) (2012); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011) (holding that when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether the statements constitute notices of disagreement, but whether they include the submission of new and material evidence under 38 C.F.R. § 3.156(b).). As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When an appellant seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1990). If it is determined that new and material evidence has been received, the claim must be reopened and VA may then proceed to the merits of the claim on the basis of all the evidence of record. The Court has held that there is a very low threshold for reopening claims, stating that the requirements in the regulations that the evidence "raises a reasonable possibility of substantiating the claim" should be read as enabling reopening rather than precluding it. Shade v Shinseki, 24 Vet. App. 110 (2010). In this case, the RO originally denied service connection for a heart disability in September 1989, finding that the disability was not shown to exist and not shown to have been caused or aggravated by military service. The RO denied reopening the claim in August 2009. The present appeal ensued. Regardless of the RO's determination, the Board is not bound by that determination as to whether the claim should be reopened, and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Since the prior final rating decision in September 1989, VA has received additional evidence, including lay and medical evidence showing that the Veteran has a current heart disability and that it may be caused or aggravated by a service-connected disability that was not diagnosed or service-connected at the time of the previous determination. This evidence constitutes new evidence as it was not previously submitted to agency decisionmakers. It is not cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened. Again, the Court has held that section 3.156(a) "must be read as creating a low threshold" which "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim." Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Given this standard, the Board finds that the additional evidence is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of the claim of service connection for cardiovascular disability. Service Connection - Laws and Regulations Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In some circumstances, certain chronic diseases listed at 38 C.F.R. § 3.309(a) may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 C.F.R. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection - Cold Injuries of the Ankles, Skin, Face, and Hips As multiple claims stem from the Veteran's cold injuries, and each follows a similar analysis, the Board will address the claims together. During the March 2009 VA examination, the Veteran reported that his cold injury occurred in 1944 and 1945. Skin examination revealed abnormal findings of necrobiosis lipidico diabeticorum in both legs anteriorly with no evidence of scar. Extremities examination revealed no findings of persistent coldness, ischemic limb pain at rest, gangrene, deep ischemic ulcer, or atrophic skin changes. Reynaud's Syndrome was absent. The skin color was normal with no edema. Skin texture was also normal. There was evidence of fungus in the toenails, but no ulceration, signs of deformity, atrophy, or tissue loss. There was no loss of digits. Skin temperature and moisture was normal with no missing nails and normal hair growth. The examination of the ankle joints were within normal limits. The examiner noted no edema, effusion, weakness, tenderness, redness, heat, guarding of movement, or subluxation. The examination of the hips showed guarding of movement bilaterally, with some limitation of motion. X-rays showed degenerative arthritic changes and sclerosis at the symphysis pubis bilaterally, but not the hips. The examiner noted no pathology to render a diagnosis regarding the skin, face, and ankles, or hips. Although the Veteran asserts that he has a current disability of the face, skin, ankles, and arthritis of the hips due to cold exposure, the Veteran has not demonstrated that he has expertise in medical matters. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). As to a diagnosis of residuals of a cold injury, the Board finds that the diagnosis and determination of etiology of such a disorder is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. The Veteran is certainly competent to testify as to symptoms, such as temperature changes and pain, which are non-medical in nature; however he is not competent to render a medical diagnosis or etiology. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also, Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). In this case, no competent evidence of record finds a diagnosis of a disability of the skin and face or the bilateral ankles. The record also does not include a diagnosis of arthritis of the hips. The only evaluation of record showed no pathology to render a diagnosis. The examiner was fully informed of the pertinent factual premises of the case and addressed the Veteran's lay assertions. Additionally, he provided a fully articulated opinion that included a reasoned analysis. Therefore, the Board finds that the examiner's opinion is of more probative value than the Veteran's lay assertions that he has a current disability of the skin and ankles or a current diagnosis of arthritis of the bilateral hips. Without evidence of a current disability related to service, service connection may not be granted. As the preponderance of the evidence is against the claims that the Veteran has a currently diagnosed cold residual disability of the face, skin, or ankles and arthritis of the bilateral hips related to an injury, disease, or event in service, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Service Connection - Anxiety Attacks The Board acknowledges that the Veteran experiences anxiety. The VA examiner in March 2009, however, did not diagnose a separate anxiety disorder. He additionally noted no panic attacks. Again, without evidence of a current disability related to service, service connection may not be granted. In this case, no competent evidence of record reflects a separate diagnosis of an anxiety disorder is present. Additionally, the Board notes that the Veteran is currently-assigned a 50 percent rating for his service-connected PTSD. The rating criteria for PTSD include consideration of anxiety and sleep disturbances such as nightmares. Thus, these are symptoms of PTSD for which the Veteran is already being compensated. 38 C.F.R. § 4.130. The Rating Schedule generally prohibits pyramiding, i.e., evaluating the same disability under different diagnostic codes. 38 C.F.R. § 4.14. As sleep disturbances, to include nightmares, and anxiety are already evaluated under the criteria for PTSD, they will not be separately evaluated. The weight of the competent evidence is against the claim; there is no doubt to be resolved; service connection for a separate anxiety disorder is not warranted. The appeal is denied. Service Connection - Prostate Cancer The Veteran asserts that he has prostate cancer that is causally related to service. The Veteran is not shown to be competent to identify a cause for prostate cancer, although he is competent to assert the presence of its symptoms. The Veteran does not assert that he had prostate cancer during service. The medical evidence shows symptoms of prostate cancer beginning in August 2004 with a diagnosis in September 2004, nearly six decades after his separation from service. The medical and lay evidence at no point shows a causal relationship between the Veteran's service and his prostate cancer. In these circumstances, the Board finds that the preponderance of the evidence indicates that the Veteran's prostate cancer did not have its onset during service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). The appeal is denied. Higher Initial Rating - Laws and Regulations Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. In any increased rating claim, different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). The bilateral hand, knee, and foot disabilities are all rated at 20 percent under Diagnostic Code 7122 for cold injury residuals. Under that regulation, a 30 percent disability rating is warranted for arthralgia or other pain, numbness, or cold sensitivity plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). A 20 percent rating is warranted for arthralgia or other pain, numbness, or cold sensitivity plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). 38 C.F.R. § 4.104. The Note following the regulation instructs the rater to separately evaluate amputations of fingers or toes, and complications such as squamous cell carcinoma at the site of a cold injury scar or peripheral neuropathy, under other diagnostic codes. It also states to separately evaluate other disabilities that have been diagnosed as the residual effects of cold injury, such as Reynaud's phenomenon, muscle atrophy, etc., unless they are used to support an evaluation under diagnostic code 7122. 38 C.F.R. § 4.104. To receive a higher disability rating, the affected part must show two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis. Higher Initial Rating - Right and Left Hand Osteoarthritis At the March 2009 VA examination, the Veteran reported pain in his hands exacerbated by physical activity. He also reports stiffness or lack of flexibility. The examiner noted no findings of persistent coldness, ischemic limb pain at rest, gangrene, deep ischemic ulcer, or atrophic skin changes. He also noted no Reynaud's syndrome. Physical examination of the hands shows that the Veteran can tie shoelaces, fasten buttons, and pick up a piece of paper and tear it without difficulty. The examiner noted no ankylosis of the thumb or index fingers bilaterally. Limitation of motion was very slight with no additional limitation due to pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. X-rays showed osteoarthritic features of the right hand. X-rays also showed an abnormal left hand with osteoarthritic features, possible chondrocalcinosis. The Veteran's lay statements support his assertion that he has pain and stiffness of the hands; however, neither the lay nor medical evidence indicates two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). The Veteran has asserted that his cold injury and his osteoarthritis be rated separately. The Board again notes that the regulation states to separately evaluate other disabilities that have been diagnosed as the residual effects of cold injury, such as Reynaud's phenomenon, muscle atrophy, etc., unless they are used to support an evaluation under diagnostic code 7122. The osteoarthritis has been used to rate the Veteran's cold injury under Diagnostic Code 7122. Accordingly, a separate evaluation is not warranted. In view of the foregoing, the preponderance of the evidence is against the claim, and this aspect of the appeal is denied. Higher Initial Rating - Right and Left Knee DJD The March 2009 examiner noted bilateral knee arthritis due to cold injuries. The Veteran reported significant pain at the knees. The Veteran experiences swelling, stiffness, giving way, and locking. The examiner noted no findings of persistent coldness, ischemic limb pain at rest, gangrene, deep ischemic ulcer, or atrophic skin changes. The Veteran's posture and gait were within normal limits. Examination of the knees showed guarding and crepitus bilaterally with no subluxation or ankylosis. The Veteran's right knee range of motion showed 110 degrees flexion with pain at 110 degrees and 5 degrees extension with pain at 0 degrees. The Veteran's left knee range of motion showed 100 degrees flexion with pain at 100 degrees and 5 degrees extension with pain at 0 degrees. After repetitive use, the joint function is additionally limited by pain and lack of endurance bilaterally, but it creates no overall additional limitation above the range of motion conducted. Again, the Veteran's lay statements support his assertion that he has pain in the knees and requires a cane for movement; however, neither the lay nor medical evidence indicates two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). A separate evaluation for other disabilities of the knees is not warranted since they are used to support the rating under the cold injury residual diagnostic code. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002). Higher Initial Rating - PTSD Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When determining the appropriate disability evaluation to assign, the Board's "primary consideration" is the Veteran's symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth edition (DSM IV), a global assessment of function (GAF) score reflects the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." DSM IV, American Psychiatric Association (1994), pp.46-47; 38 C.F.R. §§ 4.125(a), 4.130. A GAF score of 31-40 indicates 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. A GAF score of 41-50 indicates 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 51-60 represents moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 61-70 indicates 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. The Veteran's service-connected PTSD has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides, in part as follows: A 50 percent disability rating is warranted when the Veteran experiences occupational and social impairment, with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. A 100 percent disability rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130. In Mittleider v. West, 11 Vet. App. 181 (1998), the United States Court of Appeals for Veterans Claims (Court) held that VA regulations require that when the symptoms and/or degree of impairment due to a Veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. A review of the record reflects that the Veteran was granted service connection for PTSD in a August 2009 rating action, at which time it was evaluated as 30 percent disabling. The Veteran submitted a claim for increase in August 2009. A May 2011 rating decision increased the rating to its current 50 percent rating. The 50 percent evaluation was made effective throughout the entire period on appeal. The Veteran attended a VA examination in March 2009. The Veteran reported symptoms of nightmares and trouble sleeping. He is currently taking Zoloft. The Veteran avoids stimuli associated with the traumatic events. He has a persistent inability to recall an important aspect of the trauma. He has a persistent feeling of foreshortened future and detachment or estrangement from others. He has a persistent restricted range of affect. He has difficulty falling or staying asleep. He exhibited irritability or outbursts of anger. He has a persistent, exaggerated startle response. He presented with difficulty concentrating. The Veteran's orientation was within normal limits. His appearance and hygiene were appropriate. His affect and mood were flattened. The Veteran was very unemotional. Panic attacks were absent. The Veteran showed signs of suspiciousness. He showed no history of delusions. The Veteran provided a history of hallucinations intermittently, including hearing and seeing memories of the war, different objects, and people. This experience happened 10 to 15 years ago and there were no hallucinations observed during the examination. Obsessional rituals were also absent. The Veteran's thought processes were impaired as he showed slowness of thought. He had difficulty understanding and answering questions. His judgment was unimpaired and his abstract thinking was normal. His memory was mildly impaired, but the Veteran denied memory problems. The examiner noted no suicidal or homicidal ideations. The Veteran was provided with the diagnosis of PTSD with a GAF score of 55. The Veteran's symptoms cause distress or impairment in social, occupational, or other areas of functioning. The Veteran showed isolation and emotional and social disconnect. The examiner determined that the best description of the Veteran's current psychiatric impairment is occupational and social impairment with reduced reliability and productivity. The examiner supported this finding noting that the Veteran had flattened affect, impairment in short and long term memory, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. He had no difficulty understanding commands. He posed no threat of danger or injury to himself or others. The Veteran's statements support his history and complaints noted during the March 2009 VA examination. No other evidence of record addresses the Veteran's PTSD. To receive a 70 percent disability rating, the evidence must show: occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. The preponderance of the evidence is against a finding of entitlement to a 70 percent disability rating. The Veteran does not exhibit the symptoms associated with that level of impairment. There is no suicidal ideation, obsessional rituals, illogical, obscure or irrelevant speech, near- continuous panic or depression affecting the ability to function independently, appropriately and effectively, spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, or an inability to establish and maintain effective relationships. The Board has considered that the symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but nevertheless, the disability picture the Veteran presents does not approximate the effects that the listed symptoms would produce. The Veteran's GAF score is also consistent with a 50 percent rating, falling between 51 and 60. This score represents moderate impairment, which is more consistent with the 50 percent criteria. Based on the evidence of record, the Board finds that the manifestations of the Veteran's PTSD do not more nearly approximate the criteria for a 70 percent disability rating. As such, the Board finds that the preponderance of the evidence is against the claim. Extraschedular Consideration The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (2011). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The Board finds that the rating criteria contemplate the Veteran's disabilities. The wording of the criteria to evaluate PTSD contemplate any expressed symptoms, and the cold injures are manifested by symptoms in those rating criteria. Therefore, the rating criteria are adequate to evaluate the Veteran's disabilities and referral for consideration of an extraschedular rating is not warranted. ORDER New and material evidence having been received the claim of entitlement to service connection for a cardiovascular disability is reopened. Entitlement to service connection for cold injury residuals of the skin and face is denied. Entitlement to service connection for cold injury residuals of the ankles is denied. Entitlement to service connection for arthritis of the hips is denied. Entitlement to service connection for anxiety attacks with nightmares is denied. Entitlement to service connection for prostate cancer is denied. Entitlement to an initial disability rating in excess of 50 percent for PTSD is denied. Entitlement to an initial disability rating in excess of 20 percent for osteoarthritis of the right hand, residual of cold injury, is denied. Entitlement to an initial disability rating in excess of 20 percent for osteoarthritis of the left hand, residual of cold injury, is denied. Entitlement to an initial disability rating in excess of 20 percent for DJD of the right knee is denied. Entitlement to an initial disability rating in excess of 20 percent for DJD of the left knee is denied. REMAND Regarding the Veteran's cardiovascular disability, he should be examined to ascertain whether his cold weather injury, or his service connected disabilities have played any role in the development or severity of this impairment. Regarding the symphysis pubis, given its proximity to the hips, and the sclerosis present there, the question is raised as to whether the Veteran's hip claims should have contemplated the symphysis pubis disorder. Sympathetically reading the Veteran's claims permits its inclusion on appeal. An opinion should be sought whether the sclerosis of it may be due to cold weather injury. Regarding the hallux valgus problems, it is unclear whether the toe nail fungus which has been identified should be contemplated as part of the Veteran's cold injury. This should be clarified on examination. Lastly, the Veteran's contentions reasonably raise a claim for TDIU benefits. A medical opinion on this question should be sought. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination so as to determine the etiology of his cardiovascular disability. The examiner should express an opinion as to whether any current cardiovascular disability was caused by the Veteran's cold weather injury, or whether it was caused by or underwent a permanent increase in severity due to an already service connected disability. (The Veteran's service connected disabilities are: PTSD; Right and Left knee degenerative joint disease; Right and Left foot hallux valgus with degenerative features; Right and Left Hand osteoarthritis.) A rationale for the opinions expressed should be provided. 2. Schedule the Veteran for a VA examination of the feet and pelvic area. All tests and studies deemed necessary by the examiner shall be conducted. a.) With respect to the feet, the examiner should express an opinion as to whether it is at least as likely as not that the Veteran has two or more of the following related to his cold injury residuals of the bilateral feet: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). If a nail fungus is found, the examiner should indicate whether that is related to cold injury. b.) With respect to the symphysis pubis, the examiner should express an opinion as to whether it is at least as likely as not that that the sclerosis of the symphysis pubis is the result of the Veteran's in-service cold exposure. A rationale for the opinions expresses should be provided. 3. Schedule the Veteran for a VA examination, to obtain an opinion as to whether without consideration of his age or non-service-connected disabilities, the Veteran's service-connected disabilities render him unable to secure or maintain a substantially gainful occupation in light of his education, training and work history. (His service connected disabilities as of this writing include PTSD; Right and Left knee degenerative joint disease; Right and Left foot hallux valgus with degenerative features; Right and Left Hand osteoarthritis.) 4. Then readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, the Veteran and his representative shall be provided with 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 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 E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs