Citation Nr: 1455495 Decision Date: 12/17/14 Archive Date: 12/24/14 DOCKET NO. 12-02 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a skin disorder. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for headaches, to include migraines. 3. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for chronic fatigue. 4. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a joint disorder. 5. Entitlement to service connection for muscle pain. 6. Entitlement to service connection for a sleep disorder. 7. Entitlement to service connection for difficulty concentrating. 8. Entitlement to service connection for shortness of breath. 9. Entitlement to service connection for forgetfulness. 10. Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to April 2, 2010. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1974 to August 1977 and from September 1990 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from January 2010 and April 2010 rating decisions issued by the Regional Office (RO) in Nashville, Tennessee. The Veteran indicated in his January 2012 VA Form 9 that he wished to testify at a videoconference hearing. Although the appellant was notified of a scheduled October 2012 hearing in an August 2012 correspondence, he failed. Thus, his hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2014). As a preliminary matter, the Board notes that in a December 2008 rating decision, the Veteran was determined to be not competent to handle disbursement of funds and in a September 2008 rating decision, he was awarded a total disability rating based on individual unemployability (TDIU), effective April 2008. In a January 2012 VA Form 9, the representative argued that the Veteran's mental incompetence prevented him from timely appealing the effective date for the award of a TDIU and that this issue should therefore be considered on appeal. The Board finds no factual basis to support such a conclusion. Significantly, although neither the Veteran nor his representative submitted any correspondence relating to a TDIU until more than one year after the September 11, 2008 rating decision, in an August 24, 2009 statement, i.e. within one year of the TDIU award, the appellant submitted the following statement: "I wish to file a claim for Gulf War Syndrom [sic]. I have had fatigue, headaches, joint and muscle pains, skin rashes, shortness of breath and sleep disturbances, difficulty in concentration and forgetfulness. I am tired all the time. While in the Gulf rashes came upon me and continued when I got home. My joints and muscles hurt all the time. I used to work on cars now with this joint pain I cannot do anything and have to pay some one to take care of my own car. I cannot walk very far because of shortness of breath, before I could walk any where. I cannot concentrate and I forget where I am going, my wife has to remind me all the time. All my records are at the VA Mountain Home, Tenn. Thanks for your help." The statement was signed by the Veteran. The above statement conclusively establishes that the appellant was capable of submitting a timely notice of disagreement, since the statement was submitted within the appeal period and was written in a coherent and logical fashion. Moreover, even if the Veteran's mental incapacity posed a challenge to appealing the decision, he had the assistance of his representative at his disposal. Since August 2009, the Veteran has been represented by the Tennessee Department of Veterans' Affairs and prior to that time, he was represented by Veterans of Foreign Wars. There is therefore no factual basis to even begin to entertain the argument that his mental incapacity warrants a good cause exception or equitable tolling. Finally, nothing in the August 2009 statement can reasonably be construed as a notice of disagreement with the effective date for the award of a TDIU. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the appeal. A review of the documents in such file reveals documents that are either duplicative of the evidence in the claims file or irrelevant to the issues on appeal. The issues of entitlement to service connection for difficulty concentrating, entitlement to service connection for shortness of breath, and entitlement to service connection for forgetfulness are addressed in the REMAND portion of the decision below and REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Evidence added to the record since the unappealed August 2008 Board decision declining to reopen a claim of entitlement to service connection for a skin rash is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran's claim. 2. Evidence added to the record since the unappealed April 1998 rating decision denying entitlement to service connection for headaches is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran's claim. 3. Evidence added to the record since the unappealed December 2002 rating decision denying entitlement to service connection for chronic fatigue is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran's claim. 4. Evidence added to the record since the unappealed August 2008 Board decision denying entitlement to service connection for a joint pain disability is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran's claim. 5. A preponderance of the evidence reflects that the Veteran does not currently have a diagnosed muscle pain disorder and that any current symptoms of muscle pain are not attributable to an undiagnosed illness or a medically unexplained chronic multisymptom illness. A muscle pain disorder is not secondary to a service-connected disability. 6. The evidence is at least in equipoise as to whether the Veteran's service-connected PTSD causes a sleep disorder. 7. A preponderance of the pertinent evidence reflects that during the period on appeal, prior to December 2, 2009, the Veteran's PTSD was not manifested by total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 8. The evidence is at least in equipoise as to whether, from December 2, 2009, the Veteran's PTSD most nearly approximates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. CONCLUSIONS OF LAW 1. New and material evidence has not been presented to reopen a claim of entitlement to service connection for a skin disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2014). 2. New and material evidence has not been presented to reopen a claim of entitlement to service connection for headaches, to include migraines. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence has not been presented to reopen a claim of entitlement to service connection for chronic fatigue. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). 4. New and material evidence has not been presented to reopen a claim of entitlement to service connection for a joint disorder. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). 5. The Veteran does not have a disorder manifested by muscle pain that is the result of disease or injury incurred in or aggravated by active military service, to include as due to an undiagnosed illness or other medically unexplained chronic multisymptom illness, or as secondary to a service-connected disorder. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310, 3.317 (2014). 6. With resolution of reasonable doubt in the appellant's favor, his insomnia was caused by or a result of his service-connected PTSD. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. The criteria for a rating in excess of 70 percent for PTSD prior to December 2, 2009 are not met; the criteria for a rating of 100 percent for PTSD from December 2, 2009 are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In September 2009, VA notified the Veteran of the information and evidence needed to substantiate his claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. This letter advised the Veteran that some of his claims were previously denied, defined "new and material evidence" and explained the reasons why the claims were previously denied in accordance with Kent v. Nicholson, 20 Vet. App. 1 (2006). Although the September 2009 letter indicated that VA had also sent a letter detailing the requirements to establish service connection due to a Gulf War undiagnosed illness, the copy associated with the claims folder did not include such a letter. Even if the appellant had not received such a letter, however, any notice defect did not prejudice the appellant as the contents of the VCAA letter nonetheless advised the Veteran that service connection for chronic diseases that may be related to service in the Persian Gulf was possible and informed him of the type of information needed to establish such a claim. The issues were readjudicated in January 2012. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. The Veteran was provided with a general medical examination in November 2011, which for reasons discussed below, the Board finds adequate. The Veteran was notified and is aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). I. New and Material Evidence The Veteran seeks to reopen claims of entitlement to service connection for a skin disorder, headaches, chronic fatigue and joint pain. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence submitted since the last rating decision is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is generally "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Board has reviewed all of the evidence in the appellant's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Skin Disorder The Veteran seeks to reopen a claim of entitlement to service connection for a skin disorder. An August 2008 Board decision declined to reopen a claim of entitlement to service connection for a skin rash, to include as due to an undiagnosed illness. A prior final April 1998 rating decision had denied service connection for a skin rash because there had been no evidence that a skin disorder onset during service or within one year of service. In the August 2008 decision, the Board noted that the only evidence submitted since the prior final disallowance included continued treatment for a skin rash, which had been diagnosed as eczema and dermatitis. Since such evidence failed to relate the skin disorder to the appellant's periods of active duty, and because both eczema and dermatitis were known, clinically diagnosed disorders, the Board determined that new and material evidence had not been presented in order to reopen the claim. The unappealed Board decision became final. See 38 C.F.R. § 20.1100. In the current appeal, the Board again finds that the Veteran has failed to present new and material evidence. Although a January 2009 private treatment record noted that the Veteran was "positive" for Gulf War Syndrome with associated symptoms including skin appearance changes and skin rashes, as well as 28 other issues, this occurred in the context of a new patient consultation and was listed under a review of symptoms (ROS). As such, and given the lack of a corresponding diagnosis by the examining physician assistant, this notation was based on the Veteran's own report of medical history. The statement is therefore essentially the appellant's own lay assertion. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) ("a bare transcription of a lay history is not transformed into 'competent medical evidence' merely because the transcriber happens to be a medical professional"). Given that the Veteran previously made such claims, it is cumulative of the evidence of record at the time of the August 2008 Board decision. September 2009 statements by the Veteran's brother and wife that assert that he has had a skin rash since leaving service are similarly redundant. Other medical evidence of record fails to even suggest a link between a skin disorder and the Veteran's military service or an undiagnosed illness. Indeed, the January 2009 private treatment record shows that after examining the Veteran, the certified physician assistant noted that his skin was "pink, warm, dry, with no lesions." Moreover, at a November 2011 VA general medical examination, after reviewing the claims file and examining the Veteran, a certified physician assistant diagnosed the appellant with mild eczema of the anterior tibia and opined that there was no evidence for any chronic undiagnosed illness or chronic multi-symptom illness. The Board recognizes the Veteran's testimony, and the various lay statements that the appellant has presented. None of these, however, constitute competent medical evidence. In short, the new evidence suffers from the same defect as the evidence previously submitted. It is cumulative in the sense that it is only evidence of a current disability; none of the newly submitted evidence relates the skin disorder to service or to an undiagnosed illness or chronic multi-symptom illness. The Federal Circuit has held that, according to the plain language of the regulation, evidence that is merely cumulative of other evidence in the record cannot be new and material, even if that evidence had not previously been presented to the Board. See Anglin, 203 F. 3d at 1347. In sum, because the evidence received since the last final decision is cumulative of the evidence already of record and does not provide a reasonable possibility of substantiating the claim, the Veteran has not submitted new and material evidence to reopen the claim of entitlement to service connection for a skin disorder. Accordingly, the claim for service connection for a skin disorder, to include as due to an undiagnosed illness, is not reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Headaches, to include Migraines The Veteran seeks to reopen a claim of entitlement to service connection for headaches, to include migraines. An April 1998 rating decision denied entitlement to service connection for headaches. The Veteran appealed but failed to timely perfect the appeal, and in a June 1999 correspondence, VA informed him that his May 1999 VA Form 9 had not been received within the appropriate period. The Veteran did not appeal the RO's finding of untimeliness and the April 1998 rating decision became final. At the time of the April 1998 rating decision, service treatment records were negative for complaints, treatment or diagnoses of headaches. Although the Veteran claimed that his headaches first began in 1992, the RO found that the first evidence of headaches appeared in a November 1993 VA examination where an assessment of tension cephalgia was noted. At an August 1997 VA general medical examination, the Veteran reported that headaches occurred twice a week with increased sensitivity to light and sound, and noted that he took eight to ten aspirin a day and would often lie in a dark room for relief. The examiner diagnosed him with migraine headaches. The Board finds that the evidence submitted since the final April 1998 rating decision is cumulative of the evidence previously considered. Although the January 2009 private treatment record discussed above shows that the Veteran was "positive" for Gulf War Syndrome with associated symptoms including migraines, tension headaches and 28 other issues, this occurred in the context of a new patient consultation and was listed under a review of symptoms. As such, the notation was based on the Veteran's own report of medical history and is therefore essentially his own lay assertion. See LeShore, 8 Vet. App. at 409. Given that the Veteran previously made such claims, it is cumulative of the evidence of record at the time of the April 1998 rating decision. Indeed, after examination, the January 2009 private treatment record shows an assessment of cervicogenic headaches and noted that the Veteran's "difficulties" seem to originate from cervical spine spondylosis. Other medical evidence reiterates this conclusion. A May 2005 VA treatment record, for example, notes an assessment of chronic headaches and an October 2008 VA treatment record indicates that the tension headaches are probably related to degenerative disc disease. As the etiology of the headaches appears to be related to his non-service-connected cervical spine disorder, there is little indication that it results from an undiagnosed illness or medically unexplained multisymptom illness. Again, the November 2011 VA general medical examination found no basis for any chronic undiagnosed illness or chronic multi-symptom illness. Since the prior rating decision already considered the Veteran's lay assertions and medical evidence showing a current disability, evidence submitted since then is essentially cumulative of the other evidence in the record and thus cannot be new and material, even if that evidence had not previously been presented to the Board. See Anglin, 203 F. 3d at 1347. Accordingly, the claim is not reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni, 5 Vet. App. at 467. Chronic Fatigue The Veteran seeks to reopen a claim of entitlement to service connection for chronic fatigue. A December 2002 rating decision reopened but denied entitlement to service connection for chronic fatigue, to include as due to an undiagnosed illness. In denying the claim, the RO endorsed the findings of the April 1998 rating decision, which also found that although a November 1993 VA Gulf War examination assessed the Veteran with chronic fatigue syndrome, it had preexisted his second period of service and had not been permanently worsened during service. Evidence of record at the time of the rating decision also included a June 1985 VA treatment record which showed complaints of weakness and no energy and a March 1987 VA treatment record indicating that the Veteran complained of always feeling weak. Service treatment records for the appellant's second period of service were negative for complaints or treatment for chronic fatigue. The April 1998 rating decision also noted that an August 1997 VA general medical examiner opined that chronic fatigue was largely due to his non-service-connected back pain. The Veteran did not appeal the December 2002 rating decision as to the issue of entitlement to service connection for chronic fatigue and the decision became final. Relevant evidence submitted since the December 2002 rating decision includes the Veteran's lay assertions of fatigue due to an undiagnosed illness; the January 2009 private treatment record showing in the ROS that appellant was "positive for Gulf War Syndrome with weakness [and] fatigue;" and the November 2011 VA general medical examination, where the examiner, after reviewing the claims folder and examining the Veteran, noted that the appellant did not meet the criteria for chronic fatigue and opined that "there is no evidence for any chronic undiagnosed illness, nor of chronic multi-symptom illness compatible with 'Gulf War Syndrome' [since] each diagnosis can be accounted for." The new evidence is essentially cumulative of the evidence at the time of the prior rating decision. As above, the January 2009 private treatment record reflects merely the Veteran's lay assertion that his fatigue is related to service and the November 2011 VA general medical examination fails to suggest a relationship between the appellant's Gulf War service and his chronic fatigue. There is no medical evidence indicating that chronic fatigue was permanently worsened during service. Thus, the evidence is essentially duplicative of evidence submitted in the past and cannot be new and material. See Anglin, 203 F. 3d at 1347. Accordingly, the claim is not reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni, 5 Vet. App. at 467. Joint Disorder The Veteran seeks to reopen a claim of entitlement to service connection for a joint disorder. The August 2008 Board decision also denied entitlement to service connection for a joint pain disability, to include as due to an undiagnosed illness. In pertinent part, the Board considered that service treatment records were negative for complaints of joint pain or findings attributable to joint pain; that his April 1991 separation examination yielded normal findings; that the Veteran completed an April 1991 Report of Medical History in which he stated, by checked box, that he did not have any swollen or painful joints; arthritis, rheumatism, or bursitis; or bone, joint, or other deformity and in which he stated that he was in good health. The Board acknowledged that post-service medical records showed diagnoses of arthralgia in November 1993 and July 2003, as well as diagnoses of arthritis in September 2000 and July 2002, but found that such known, clinically diagnosed disorders precluded entitlement on an undiagnosed illness theory. The Board also concluded that because there were no diagnoses of arthritis in service or within one year of separation from service, and because there was no evidence otherwise relating his diagnoses to service, there were no other bases for entitlement. The unappealed Board decision became final. See 38 C.F.R. § 20.1100. The evidence submitted since the final August 2008 Board decision is essentially cumulative of the evidence previously considered. While the July 2009 private treatment record, for example, shows an assessment of cervical spondylosis and diffuse arthropathy, it does not relate it to service. As above, although the January 2009 private treatment record noted in the ROS that the Veteran was "positive" for Gulf War Syndrome with chronic joint pain and 28 other issues, this essentially represents only a lay assertion. Indeed, after examination, a physician assistant endorsed an assessment of cervical spondylosis with posterior facet syndrome. Again, the November 2011 VA general medical examination fails to suggest a relationship between the Veteran's Gulf War service and his joint pain. No evidence has been submitted which indicates an in-service diagnosis of a joint disorder, that arthritis onset within one year of separation from service or that a joint disorder is otherwise related to service. The Board recognizes the Veteran's testimony, and the various lay statements that the appellant has presented, to include September 2009 statements by his brother and wife asserting a link to service. None of these, however, constitute competent medical evidence. In short, the new evidence suffers from the same defect as the evidence previously submitted. It is cumulative in the sense that it is only evidence of a current disability; none of the newly submitted evidence relates the joint disorder to service or to an undiagnosed illness or chronic multi-symptom illness. In sum, because the evidence received since the last final decision is cumulative of the evidence already of record and does not provide a reasonable possibility of substantiating the claim, the Veteran has not submitted new and material evidence to reopen the claim. Accordingly, the claim of entitlement to service connection for a joint disorder, to include as due to an undiagnosed illness, is not reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni, 5 Vet. App. at 467. II. Service Connection The Veteran claims entitlement to service connection for muscle pain and a sleep disorder. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition to the foregoing, VA will pay compensation to a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability, provided that such disability became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2016; and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317. Consideration of a veteran's claim under this regulation does not preclude consideration of entitlement to service connection on a direct basis. Here, the Veteran had qualifying Persian Gulf service from September 1990 to June 1991. The signs and symptoms which may be manifestations of undiagnosed illness or a chronic multisymptom illness include, but are not limited to: (1) fatigue, (2) signs or symptoms involving the skin, (3) headaches, (4) muscle pain, (5) joint pain, (6) neurologic signs or symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the respiratory system (upper or lower), (9) sleep disturbance, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, or (13) menstrual disorders. 38 C.F.R. § 3.317. Compensation availability has been expanded to include 'medically unexplained chronic multisymptom illness,' such as fibromyalgia, chronic fatigue syndrome, and irritable bowel syndrome, as well as any diagnosed illness that the Secretary determines by regulation to be service-connected. See Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-1-3, 115 Stat. 976 (2001). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Muscle Pain The Veteran claims entitlement to service connection for muscle pain, to include as due to an undiagnosed illness. The record before the Board includes a number of complaints of muscle pain, which at times the Veteran attributes to a specific musculoskeletal disorder and at other times he associates with an undiagnosed illness or a chronic multisymptom illness. In the August 2009 claim, for example, he alleged that his muscle pain was due to Gulf War Syndrome. In the February 2010 notice of disagreement, he claimed that his muscle pain was secondary to his joint disorders. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1131; see also Degmetich v. Brown, 104 F.3d 1328 (1997). It is well-settled that in order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), it was noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents resulted in disability. See also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin, 155 F. 3d at 1353. The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here, the Veteran has characterized his muscle pain as generalized or diffuse, i.e. not localized or associated with a particular musculoskeletal disorder. Thus, to the extent the record shows muscle pain as symptomatic of a particular musculoskeletal disorder, this does not establish the existence of a current disability since the Veteran has not alleged entitlement to service connection for a specific musculoskeletal disorder, for example a shoulder disorder. A July 2003 VA treatment record notes an impression of "generalized pain" and a June 2009 private treatment record shows an assessment of diffuse myalgia. To the extent the Veteran argues that such medical evidence constitutes a current disability, the Board notes that myalgia is simply "pain in a muscle or muscles." See Dorland's Illustrated Medical Dictionary, at 1214 (32d ed. 2012). Thus, such a diagnosis only indicates that the Veteran has experienced muscle pain. Muscle pain alone, without a finding of an underlying disorder, cannot be service-connected. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Moreover, while the Veteran is competent to report the severity and duration of his muscle pain, attributing such symptoms to a medical disorder is outside the scope of his lay competence. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the evidence of record documents the appellant's complaints of muscle pain, as evidenced by an August 2000 private treatment record, the August 2009 claim and the February 2010 notice of disagreement, the Veteran's lay assertions alone are insufficient to establish the existence of a current disability. In light of the above, entitlement to service connection on a direct basis is denied. 38 U.S.C.A. §§ 1131. The lack of a current disability is also fatal to the Veteran's claim that his muscle pain is secondary to a joint disorder, and, even if there were a current disability, the appellant is not service connected for a joint disorder. 38 C.F.R. § 3.310. To the extent the Veteran alleges that evidence of muscle pain constitutes "signs and symptoms" of an undiagnosed illness, this too is unfounded. Although the January 2009 private treatment record noted that the Veteran was "positive" for Gulf War Syndrome, this occurred in the context of a new patient consultation and was listed under a review of symptoms. As such, and given the lack of a corresponding diagnosis by the examining physician assistant, the notation was based on the Veteran's own report of medical history and the statement is therefore tantamount to the appellant's own lay assertion. See LeShore, 8 Vet. App. at 409 ("a bare transcription of a lay history is not transformed into 'competent medical evidence' merely because the transcriber happens to be a medical professional"). Further, any probative value the January 2009 private treatment record may carry is significantly outweighed by the November 2011 VA general medical examination. There, after reviewing the claims file and conducting a thorough examination of the Veteran, the examiner determined that although the appellant complained of muscle pain, he evidenced no muscle symptoms or flare-ups, and that the "the musculature is normal without wasting or atrophy, no abnormal movements, good tone and strength." As to a relationship to an undiagnosed illness, she opined that "[t]here is no evidence for any chronic undiagnosed illness, nor of chronic multi-symptom illness compatible with 'Gulf-War Syndrome.' Each diagnosis can be accounted for. Rationale: This opinion is based on this history and physical examination with a review of the medical records as noted." While the examiner's rationale is somewhat brief, the Board nonetheless finds it to be adequate since the examiner conducted a thorough review of the claims folder and examination of the Veteran. Although she did not discuss entitlement to service connection on a direct basis, an examination on that theory of entitlement was not warranted since, as discussed above, there was no evidence of a current disability. See 38 U.S.C.A. § 5103A (d). While the Veteran is competent to report on the severity and duration of his muscle pain symptoms, diagnosing a complex disorder such as fibromyalgia or attributing his symptoms to an undiagnosed illness is outside his lay competence. Jandreau, 492 F.3d at 1372. A preponderance of the evidence thus weighs against the claim of entitlement to a muscle disorder on the basis of an undiagnosed illness or a medically unexplained chronic multisymptom illness. 38 C.F.R. § 3.317. In light of the above, the claim is denied. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). Sleep Disorder The Veteran claims entitlement to service connection for a sleep disorder. At the November 2011 VA general medical examination, after reviewing the claims file and examining the appellant, the examiner opined that "This veteran has had chronic sleep disturbance since his experiences in the [Persian Gulf War]. These symptoms are attributable to his service-connected PTSD." The examiner later noted a diagnosis of "sleeplessness secondary to PTSD." A review of the claims file generally supports the examiner's opinion. A January 2007 VA treatment record notes a prior history of insomnia, and a July 2006 VA treatment record indicates that the Veteran has not been sleeping due to nightmares related to combat. Service connection may be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The appellant is service connected for PTSD, which is currently evaluated as 100 percent disabling; thus, service connection is granted. III. Increased Rating The Veteran contends that he warrants a 100 percent disability rating for PTSD prior to April 2010. As a preliminary matter, the Board notes that the January 2012 statement of the case characterized this issue as an earlier effective date claim. For the foregoing reasons, and as reflected on the title page, the Board has characterized the issue as an increased rating claim. For background, the Board notes the following sequence of events. An April 2008 rating decision increased the Veteran's evaluation for PTSD, which had previously been appealed, from 30 percent to 70 percent disabling, effective May 2005. Thereafter, in April 2008, the representative submitted a statement which stated, "With the new rating decision dated 4/15/08, granting increase of PTSD from 30% to 70%, I request to withdraw this issue. Additionally, I request to open [a] claim for individual unemployability." At that time, the Veteran was service connected for PTSD only. A September 2009 rating decision granted a TDIU effective April 2008. In March 2010, the RO initiated a request for a routine VA examination to determine the current severity of the Veteran's PTSD. In April 2010, a VA examination was conducted and, in an April 2010 rating decision, after receiving the results of the examination, the RO awarded a 100 percent schedular evaluation for PTSD, effective April 2, 2010, the date of the examination. In June 2010, the appellant submitted a statement saying that he had sent a notice of disagreement on a number of issues, one of which was PTSD. In January 2012, the RO contacted the Veteran by phone to clarify the June 2010 statement, to which the Veteran responded that he believed he should have received "retro money." (As a TDIU rating was already in effect, there in essence would be no "retro money" even with an earlier date.) The January 2012 statement of the case framed the issue as "Entitlement to an effective date for the 100 percent evaluation for [PTSD] prior to April 2, 2010." Thereafter, in a January 2012 VA Form 9, the Veteran's representative argued that (a), since the April 2008 statement evidenced disagreement with the RO not awarding a TDIU, the PTSD claim should not have been withdrawn and is therefore still on appeal and (b), the evidence otherwise shows that the Veteran's PTSD became severe enough for a 100 percent disability rating prior to April 2010. The Board will address these arguments in turn. As to the representative's argument that the PTSD appeal should not have been withdrawn based on the April 2008 statement, this fails. In pertinent part, 38 C.F.R. § 20.204 provides that "Only an appellant, or an appellant's authorized representative, may withdraw an appeal. An appeal may be withdrawn as to any or all issues involved in the appeal... Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. They must include the name of the veteran... the applicable Department of Veterans Affairs file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal." Again, the Veteran's representative submitted a written statement satisfying the above criteria for the withdrawal of the appeal for an increased rating for PTSD and requested a new claim for a TDIU. While it is well-established that a claim for a TDIU can be inferred from a claim for an increased rating, a claim for a TDIU does not trigger separate claims for increased ratings. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As such, the appeal for an increased rating for PTSD was validly withdrawn in April 2008. C.F.R. § 20.204. In April 2010, however, the RO received the April 2010 VA examination showing worsening of the Veteran's PTSD. Receipt of a VA examination report can serve as an informal claim for increased rating, and the date of such a claim is the date of the examination. 38 C.F.R. § 3.157(b)(1). The new date of claim for an increased rating for PTSD is therefore April 2, 2010. As such, the issue currently on appeal is entitlement to an evaluation in excess of 70 percent for PTSD prior to April 2, 2010. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). While it is necessary to consider the complete medical history of the Veteran's condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran's increased evaluation claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. Under Diagnostic Code 9411, which is governed by a General Rating Formula for Mental Disorders, a 70 percent evaluation is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 100 percent evaluation is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Global Assessment of Function (GAF) is a scale reflecting the psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness. 38 C.F.R. §§ 4.125, 4.130 (2014). GAF scores ranging from 41 to 50 reflect 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). At the April 2010 VA examination, the Veteran reported that his symptoms had worsened, and in particular noted that he experienced worsening of concentration, nightmares, paranoia and fearfulness. Specifically, he reported that about three months ago his nightmares had become particularly bad, at which time he took six or seven of his blood pressure pills in an apparent attempt at suicide. Regarding a history of violence, he also noted that about four or five months prior he "went after" a man who had been following his wife and making suggestive gestures and scaring her. He reported that he got a bat and was going to "bash his head in but I couldn't find him." The examiner opined that the Veteran had total occupational and social impairment due to his PTSD symptoms, and assigned a GAF score of 45. Aside from the April 2010 VA examination, there is little other medical evidence showing the severity of the Veteran's PTSD from April 2009 to April 2010. A July 2009 VA individual psychology treatment noted stated that the Veteran was appropriately attired with good grooming and hygiene, alert, coherent, and communicative. The Board finds that the Veteran's attempt to attack another person with a bat evidenced a significant worsening of his PTSD symptoms, which was followed by a suicide attempt, increased nightmares, fearfulness, and pain, and worsening concentration. Based on the appellant's statement, this took place at most five months prior to the April 2010 examination. Affording the Veteran the benefit of the doubt, therefore, the Board finds that his PTSD warrants a 100 percent evaluation from December 2, 2009. At this point the Board notes that, in regard to increased rating claims, if an increase in disability precedes the claim by a year or less, the effective date is the date that the increase is shown to have occurred (i.e. is factually ascertainable), but if an increase in disability precedes the claim by more than a year, the effective date is the date that the claim is received. 38 C.F.R. § 3.400(o)(2). While the record indicates that the Veteran's PTSD at times may have manifested very severe symptoms more than one year prior to the date of claim, affording the appellant every opportunity to obtain the highest rating possible, the Board finds that on balance, prior to December 2, 2009, his PTSD was not manifested by total occupational and social impairment. To find otherwise would mean that the Veteran could not obtain a 100 percent rating prior to April 2, 2010, i.e. the date of claim. 38 C.F.R. § 3.400(o)(2). Thus, an evaluation in excess of 70 percent prior to December 2, 2009 is denied. Indeed, the July 2009 VA individual psychology treatment note stated that the Veteran was appropriately attired with good grooming and hygiene, alert, coherent, and communicative. The Board finds that no higher evaluation can be assigned pursuant to any other potentially applicable diagnostic code. Because there is a specific diagnostic code to evaluate PTSD and psychiatric disorders, consideration of other diagnostic codes for evaluating the disability is not appropriate. 38 C.F.R. § 4.20; see Butts v. Brown, 5 Vet. App. 532 (1993). The Board has considered the Veteran's lay statements. In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and duration of his service-connected PTSD. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). The Board finds that the lay evidence of record from the Veteran throughout the appeal is generally both competent and credible; however, the Board finds that it does not support a higher rating under any applicable diagnostic code. Again, between April 2009 and December 2, 2009, the medical evidence shows that his PTSD was not so severe as to constitute total occupational and social impairment. Indeed, the July 2009 VA individual psychology treatment note stated that the Veteran was appropriately attired with good grooming and hygiene, alert, coherent, and communicative. Again, a TDIU rating has been assigned since April 2008. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's PTSD are fully contemplated by the applicable rating criteria. As shown above, the criteria include multiple psychiatric symptoms and encompassed the Veteran's psychiatric symptoms as shown in the VA examination and VA treatment record. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is thus not required and referral for consideration of an extraschedular rating for PTSD is not warranted. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, the preponderance of the evidence reflects that prior to December 2, 2009, the Veteran's PTSD most nearly approximated the criteria for a 70 percent rating. The benefit-of-the-doubt doctrine is therefore not for application and to this extent, the claim is denied. From December 2, 2009, however, and affording him the benefit of the doubt, his PTSD most nearly approximates the criteria for a 100 percent rating. See 38 U.S.C.A. § 5107(b). ORDER New and material evidence has not been received in order to reopen the claim of entitlement to service connection for a skin disorder. New and material evidence has not been received in order to reopen the claim of entitlement to service connection for headaches, to include migraines. New and material evidence has not been received in order to reopen the claim of entitlement to service connection for chronic fatigue. New and material evidence has not been received in order to reopen the claim of entitlement to service connection for a joint disorder. Entitlement to service connection for muscle pain is denied. Entitlement to service connection for a sleep disorder as a symptom of PTSD is granted. Entitlement to an evaluation in excess of 70 percent for PTSD prior to December 2, 2009 is denied. Entitlement to 100 percent rating for PTSD is granted from December 2, 2009, subject to the controlling regulations governing the payment of monetary benefits. REMAND The January 2010 rating decision adjudicated a total of nine issues, including denying entitlement to service connection for difficulty concentrating, shortness of breath and forgetfulness. In a February 2010 statement, the Veteran stated "This is my notice of disagreement on your letter of January 13, 2010." The Veteran did not specify that he only intended to appeal certain issues. The January 2012 statement of the case, however, failed to include entitlement to service connection for difficulty concentrating, shortness of breath and forgetfulness. When a Veteran has filed a notice of disagreement and there is no statement of the case on file for the issues identified in the notice of disagreement, the Board must remand, not refer, the issues to the RO for issuance of an statement of the case. Manlincon v. West, 12 Vet. App. 238, 240 (1999). As no statement of the case has been issued, an appeal of those issues is not ready to be perfected. A statement of the case must be issued on remand. Accordingly, the case is REMANDED for the following action: Undertake all appropriate steps to issue the Veteran a statement of the case addressing the issues of entitlement to service connection for difficulty concentrating, shortness of breath and forgetfulness. In adjudicating the matter de novo all appropriate notice and development should be undertaken. The appellant should be afforded an appropriate time period to respond. Thereafter, if the Veteran files a timely substantive appeal (VA Form 9) on any of the remanded issues, the AOJ should undertake any indicated development, readjudicate the claim in light of the entire evidentiary record, and then issue a supplemental statement of the case, if appropriate. 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. 2014). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs