Citation Nr: 1537752 Decision Date: 09/03/15 Archive Date: 09/10/15 DOCKET NO. 14-43 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a service-connected disability. 2. Entitlement to an initial disability rating in excess of 10 percent for neurogenic bladder. 3. Entitlement to an effective date prior to June 27, 1989, for the grant of service connection for bilateral hearing loss. 4. Entitlement to an effective date prior to June 27, 1989, for the grant of service connection for tinnitus. 5. Entitlement to an effective date prior to June 9, 2004 for the grant of service connection for a low back disability. 6. Entitlement to an effective date prior to June 9, 2004 for the grant of service connection for lumbar radiculopathy of the right lower extremity. 7. Entitlement to an effective date prior to June 9, 2004 for the grant of service connection for lumbar radiculopathy of the left lower extremity. 8. Entitlement to an effective date prior to June 9, 2004 for the grant of service connection for neurogenic bladder. 9. Entitlement to an effective date prior to June 9, 2004 for the grant of a total disability rating based on individual employability due to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1969 to March 1970. This matter comes on appeal before the Board of Veterans' Appeals (Board) from the May 2011 and May 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. This appeal was processed using the Veterans Benefits Management System (VBMS). In evaluating this case, the Board has also reviewed the "Virtual VA" system to ensure a complete assessment of the evidence. The issue was previously remanded in June 2013 for the issuance of a statement of the case. This was completed in November 2014 and the Veteran submitted his substantive appeal in December 2014. Accordingly, the issues are properly before the Board for consideration. Although the Veteran's August 2010 claim specifically claimed only service connection for PTSD, other psychiatric disorders have been raised by the record. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. In consideration of this holding and the other psychiatric diagnoses of record, the Board has recharacterized the claim as reflected on the title page. In a November 2014 statement, the Veteran alleged clear and unmistakable error (CUE) in a November 1990 Board decision, which denied service connection for a low back disorder. The Veteran's CUE issue is a separate issue than the ones being decided in this decision. The Veteran will receive a letter that informs him of the applicable statute and rule when alleging CUE in a Board decision, and allows him and/or his representative 60 days to provide argument in connection with this claim. This issue will be decided in a separate decision after due process has been provided to the Veteran. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's neurogenic bladder is manifested by urinary frequency, particularly, daytime voiding intervals less than one hour or awaking to void five or more times per night; the Veteran's neurogenic bladder disability does not require the use of an appliance or the wearing of absorbent materials. 2. An acquired psychiatric disorder is not related to service or to a service-connected disability. 3. The Veteran's informal claims for entitlement to service connection for hearing loss and tinnitus were received by VA on June 27, 1989. 4. There is no evidence of claims for entitlement to service connection for hearing loss or tinnitus prior to June 27, 1989. 5. An unappealed November 1990 Board decision denied service connection for a low back disorder, and it became final. 6. After the November 1990 Board decision, the first communication from the Veteran evidencing an intent to reopen a claim of service connection for a back disorder, to include bilateral leg radiculopathy, was received on June 9, 2004. 7. An unappealed December 1992 Board decision denied service connection for a neurogenic bladder, and it became final. 8. After the December 1992 Board decision, the first communication from the Veteran evidencing intent to reopen a claim of service connection for a neurogenic bladder was received on June 9, 2004. 9. It is not factually ascertainable from the evidence of record that the Veteran was entitled to TDIU prior to June 9, 2004. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating for neurogenic bladder, but no higher, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.115(a), (b), Diagnostic Code 7542 (2015). 2. The criteria for service connection for an acquired psychiatric disorder, to include as secondary to a service-connected disability have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310, 4.125 (2015). 3. The criteria for an effective date earlier than June 27, 1989, for the grant of service connection for hearing loss have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.1(p), 3.400 (2015). 4. The criteria for an effective date earlier than June 27, 1989, for the grant of service connection for tinnitus have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.1(p), 3.400 (2015). 5. The June 1990 Board decision that denied service connection for a low back disorder is final. 38 C.F.R. § 7105(c); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302, 20.1103 (2015). 6. An effective date prior to June 9, 2004, is not warranted for the award of service connection for a low back disorder. 38 U.S.C.A. §§ 5101, 5100, 7105 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2014). 7. An effective date prior to June 9, 2004, is not warranted for the award of service connection for right lower extremity radiculopathy as secondary to the service-connected low back disorder. 38 U.S.C.A. §§ 5101, 5100, 7105 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2014). 8. An effective date prior to June 9, 2004, is not warranted for the award of service connection for left lower extremity radiculopathy as secondary to the service-connected low back disorder. 38 U.S.C.A. §§ 5101, 5100, 7105 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2014). 9. The December 1992 Board decision that denied service connection for a neurogenic bladder is final. 38 C.F.R. § 7105(c); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302, 20.1103 (2015). 10. An effective date prior to June 9, 2004, is not warranted for the award of service connection for a neurogenic bladder. 38 U.S.C.A. §§ 5101, 5100, 7105 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2014). 11. An effective date prior to December 8, 2010, for the grant of entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107, 5110, 7105 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16, 4.18 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Regarding the Veteran's claim for service connection for an acquired psychiatric disorder, a letter dated in December 2010 O provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The notice included provisions for disability ratings and for the effective date of the claim. As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, VA and private medical records, and Social Security Disability application records have been obtained, as have relevant private medical records identified by the Veteran. Although there is mental health medical evidence on record from treatment that the Veteran has undergone with respect to the claim for service connection for an acquired psychiatric disorder, the Veteran has not been provided with a VA examination with respect to this claim. VA has a duty to provide a medical examination where there is (1) competent evidence of a current disability or symptoms thereof; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability is associated with service; and (4) insufficient competent medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). As explained below, the Board finds that there was no indication that the Veteran's mental condition is associated with service, and VA therefore has no duty to provide a medical examination. As to the issues of entitlement to an earlier effective date and an initial rating in excess of 10 percent for neurogenic bladder, the Veteran's claims arise from the initial grant of service connection for the disabilities. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board further notes that adjudication of the claim for an earlier effective date from a grant of service connection is based upon evidence already in the claims folder; the resolution of the claim depends upon when certain document(s) were either received by VA and/or promulgated to the veteran. See generally 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.157, 3.160, 3.400 (2015). Consequently, there is no additional development that can be conducted, examination performed, nor any other records which can be obtained, which would substantiate his claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Rating for Neurogenic Bladder The Veteran's service-connected neurogenic bladder disability is currently evaluated as 10 percent disabling under the provisions of 38 C.F.R. § 4.155, Diagnostic Code 7542. Diagnostic Code 7542 provides that neurogenic bladder should be evaluated based on the criteria pertinent to voiding dysfunction. 38 C.F.R. §§ 4.115(b), Diagnostic Code 7542 (2015). Voiding dysfunction is rated as urine leakage, urinary frequency, or obstructed voiding. A 10 percent rating is warranted for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post void residuals greater than 150 cc; (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); (3) recurrent urinary tract infections secondary to obstruction; or (4) stricture disease requiring periodic dilatation every 2 to 3 months. A 20 percent rating is provided for voiding dysfunction that requires the wearing of absorbent materials that must be changed less than 2 times per day. A 40 percent rating is warranted for the wearing of absorbent materials, which must be changed two to four times per day. A 60 percent rating is warranted for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. 38 C.F.R. § 4.115a. For a rating based on urinary frequency, a 10 percent rating requires a daytime voiding interval between two and three hours, or awakening to void two times per night. A 20 percent evaluation for urinary frequency is warranted where there is a daytime voiding interval between one and two hours, or if the disability results in awakening to void three to four times per night. A 40 percent rating is warranted for a daytime voiding interval of less than one hour, or if the disability results in awakening to void five or more times per night. 38 C.F.R. § 4.115a. For a rating based on obstructed voiding, a 10 percent rating requires marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) Post void residuals greater than 150 cc; (2) Uroflowmetry; markedly diminished flow rate (less than 10 cc/second); (3) Recurrent urinary tract infections secondary to obstruction; (4) Stricture disease requiring period dilation every two to three months. Urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. 38 C.F.R. § 4.115a. The evidence includes a July 2014 consultation report from Dr. W.H. at Tulane University Hospital. During the evaluation, it was noted that the Veteran had "obstructive, incomplete emptying." It was further noted that he had to do clean intermittent catherization (CIC) in the early 1990s, but had stopped due to the uncomfortableness of the procedure. The Veteran reported symptoms of urge incontinence, incomplete bladder emptying, and urinary frequency. The Veteran underwent an urodynamic evaluation which showed post-void residuals of 160 ml. In a September 2014 VA primary care note, the Veteran reported having urinary frequency (approximately every 20 minutes) and incomplete emptying, but no dysuria, hematuria, or urgency. In a November 2014 statement, the Veteran has reported voiding from "twenty to fifty times per sleeping period." The Veteran also noted that, during a quadruple by-pass surgery in October 2013, the nurses emptied small urinal jugs several times per day and night. According to the Veteran, his urinary frequency "far exceeded two to three time." Upon review of all the evidence of record, the Board finds that the evidence is in equipoise as to whether the Veteran's neurogenic bladder disability more nearly approximates a 40 percent rating for urinary frequency, which contemplates daytime voiding intervals less than one hour or awakening to void five or more times per night. In a November 2014 statement, the Veteran asserted that he voids from 20 to 50 times per sleeping period. The September 2014 VA treatment record noted that the Veteran had urinary frequency approximately every 20 minutes. This would mean that in an average 8 hour sleep cycle, the Veteran would have to void approximately three to seven times per hour. The Board finds that this more nearly approximates voiding intervals less than one hour or awaking to void five or more times per night. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that a 40 percent rating, but no higher, is warranted for urinary frequency. The Board further finds that a higher rating in excess of 40 percent under obstructive voiding is also not warranted. During the July 2014 urodynamic evaluation, the Veteran underwent an urodynamic evaluation which showed post-void residuals of 160 ml. Post void residuals greater than 150 cc are contemplated in the 10 percent rating for obstructive voiding, a lower rating than currently assigned. Further, although the Veteran did undergo CIC in the early 1990s, there is no evidence that the Veteran requires catherizaton. As such, a rating in excess of 40 percent under obstructive voiding is not more nearly approximated. A higher rating in excess of 40 percent is also not warranted under voiding dysfunction as there is no evidence showing that the Veteran requires an appliance or the wearing of absorbent materials. No other Diagnostic Code appears to be applicable for the purpose of evaluating the Veteran's service-connected neurogenic bladder. Therefore, the Board finds that a rating of 20 percent, but no higher, is warranted. The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disabilities with the established criteria found in the Rating Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors included "marked interference with employment" and "frequent periods of hospitalization"). When the Rating Schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board finds that the schedular evaluation assigned for the Veteran's service-connected neurogenic bladder is adequate in this case. Here, the schedular rating criteria used to rate the Veteran's neurogenic bladder reasonably describe and assess the Veteran's disability level and symptomatology. The lay and medical evidence fails to show anything unique or unusual that would render the schedular criteria inadequate. Throughout the initial rating period on appeal, the Veteran's service-connected neurogenic bladder disability is manifested by post-void residuals of 160 ml, daytime voiding intervals less than one hour or awakening to void five or more times per night. The Veteran does not require an appliance or the wearing of absorbent materials. The schedular rating criteria that have been applied in this case reasonably and adequately describe the Veteran's bladder disability picture and therefore referral for consideration of extraschedular ratings is not warranted. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the Rating Schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran regarding the service-connected disability is specifically contemplated by the criteria discussed above, including the effect of the Veteran's symptoms on his occupation and daily life. In the absence of exceptional factors associated with the Veteran's disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. Service Connection for an Acquired Psychiatric Disorder Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). The Veteran's psychiatric disorder are not "chronic disease[s]" listed under 38 C.F.R. § 3.309(a) (2015); therefore, the presumptive service connection provision of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. 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"). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In an August 2010 correspondence, the Veteran stated that he has posttraumatic stress disorder (PTSD) as a result of being drafted into military service, or alternatively, as a result of his service-connected lumbar spine disability. He also stated that he had "traumatic experiences" both prior to and after his service. Although he stated that he had "considerable" nightmares in his childhood, the Veteran maintains that the frequency and intensity of them increased dramatically during and after service. In his statement, the Veteran also referenced definitions found on the Internet regarding PTSD and related symptoms, which the Veteran maintains he exhibits. VA treatment records reveal a positive PTSD screening in a May 2004 VA mental health evaluation (in Virtual VA). Further, a June 2009 VA treatment record shows diagnoses of bipolar disorder with a history of depressive episodes "dating back to young adulthood." The Veteran was also diagnosed with schizoaffective disorder. An October 2014 VA active problem list also notes a diagnosis of anxiety disorder. The Veteran was afforded a VA psychiatric examination in January 1993 in connection with his claim for entitlement to nonservice-connected disability pension benefits. Diagnoses rendered at that time included adjustment disorder with mixed features of anxiety and depression; however, an opinion as to the etiology of the Veteran's disorder was not provided. Service treatment records show no evidence of a pre-existing psychiatric disorder at enlistment. Service treatment records are also negative for complaints, diagnosis, or treatment of any psychiatric disorder during active duty service. Personnel records do not show receipt of medals or other citations associated with combat, and do not show that the Veteran was ever deployed to a region where hostile military or terrorist activity would be anticipated. In his December 2010 Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder, the Veteran described multiple events in service, including fights, death threats, and other incidents which were not related to combat. A formal finding of unavailability of information required to corroborate stressors associated with a claim for service connection for PTSD dated January 2012, documented that these events could not be verified and accepted as service-related stressors which could be linked to any diagnosis of PTSD. Medical records from the VA Medical Center in New Orleans show that the Veteran had been seen for psychiatric complaints, but was never been clinically diagnosed with PTSD. Various diagnoses of bipolar disorder, schizoaffective disorder, and anxiety disorder, not otherwise specified, were shown instead. However, there is no indication that these psychiatric disorders are related to service. A June 2009 VA treatment record shows diagnoses of bipolar disorder with a history of depressive episodes "dating back to young adulthood." The Board notes that the Veteran has filed numerous other claims for VA benefits, but did not mention a psychiatric disorder until his August 2010 claim, more than 40 years after service. This is further evidence that suggests to the Board that there was no persistent psychiatric symptomatology for many years after service separation. In sum, there is no medical evidence that relates that Veteran's psychiatric disorders to service or to a service-connected disability. The Board has also considered the Veteran's statements purporting to relate a psychiatric disorder to service or to a service-connected disability. However, the Board finds that the Veteran is not competent to render an opinion as to the etiology of a psychiatric disorder. In other words, as a lay person, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of medically complex psychiatric disorders. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service). Psychiatric disorders, to include PTSD, are medically complex psychological processes because of their multiple possible etiologies, require specialized testing to diagnose, and manifest symptomatology that may overlap with other disorders. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). For these reasons, and upon review of all the evidence of record, the Board finds that service connection is not warranted for an acquired psychiatric disorder, to include as due to a service-connected disability. The Board has considered the applicability of the "benefit of the doubt" doctrine; however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of this matter on that basis. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Earlier Effective Date-Legal Criteria With regard to the effective date issues on appeal, the Board notes that it has reviewed all of the evidence in the Veteran's claims file. 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 Veteran or obtained on her 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 at 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. at 128-30 (2000). In order for benefits to be paid to any individual under the laws administered by VA, a specific claim in the form prescribed by the Secretary must be filed. 38 C.F.R. § 3.151(a) (2015). A "claim" or "application" is defined by VA regulation as "a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit." 38 C.F.R. § 3.1(p) (2015). An informal claim is "[a]ny communication or action, indicating an intent to apply for one or more benefits . . . ." 38 C.F.R. § 3.155(a) (2015). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. Id. The general rule with regard to the effective date to be assigned for an award based on an original claim for VA benefits is that the effective date "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a) (West 2014). See 38 C.F.R. § 3.400 (2015) (to the same effect). Further, 38 C.F.R. § 3.400(q)(2), provides that the effective date of the grant of service connection after the receipt of new and material evidence following a final disallowance is the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. If a veteran files an application for service connection with VA, and the claim is disallowed, he has the right to appeal the disallowance to the Board. See, e.g., 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2015). If he does not initiate an appeal within one year, however, the decision becomes final. See 38 C.F.R. §§ 20.302(a), 20.1103 (2015). With exceptions not here applicable, any award based on a subsequently filed application for benefits which is reopened based on new and material evidence under can be made effective no earlier than the date of the new application. See 38 U.S.C.A. §§ 5108, 5110(a) (West 2014); 38 C.F.R. §§ 3.400(q)(2) (2015). Background and Analysis Hearing Loss and Tinnitus Disabilities On June 27, 1989 VA received medical evidence from the Veteran which noted that he had complaints of tinnitus for years. An audiological examination was also submitted which noted that the Veteran had a history of noise exposure and noised-induced hearing loss. A July 1989 rating decision denied service connection for hearing loss and tinnitus. The rating decision noted that the Veteran's claim was received on June 27, 1989. Subsequently, in a May 2011 rating decision, the RO granted service connection for hearing loss and tinnitus and assigned an effective date of June 27, 1989. After having carefully reviewed the evidence of record, the Board finds that the evidence does not support entitlement to effective dates earlier than June 27, 1989 for the grant of service connection for hearing loss or tinnitus. In fact, the Veteran is precluded from obtaining an earlier effective date. As noted above, the Veteran was granted an effective date of June 27, 1989 for both the hearing loss and tinnitus disabilities. The effective date to be assigned for an award based on an original claim for VA benefits is that the effective date "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a) (West 2014). See 38 C.F.R. § 3.400 (2014). In the present case, the Veteran is already in receipt of an effective date of June 27, 1989, the date of his claim to for service connection hearing loss and tinnitus. Further, there is no evidence of formal or informal claims for service connection for hearing loss or tinnitus prior to June 27, 1989. Accordingly, an earlier effective date cannot be awarded under VA regulations. For these reasons, entitlement to an effective date earlier than June 27, 1989, for the award of service connection for hearing loss or tinnitus cannot be granted, as there is nothing in the record to provide a basis to award an earlier effective date. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (in case where law, as opposed to facts, is dispositive, claim should be denied or appeal terminated because of the absence of legal merit or lack of entitlement under the law). Low Back, Radiculopathy, and Neurogenic Bladder Disabilities The Veteran was denied service connection for a low back disorder in a November 1990 Board decision. The Veteran was also denied service connection for neurogenic bladder in a December 1992 Board decision. The Veteran was notified of the determinations, but did not appeal the decisions to the Court. Accordingly, the November 1990 and December 1992 Board decisions are final. 38 C.F.R. § 20.1103. On June 9, 2004, VA received the Veteran's claim to reopen service connection for "spinal injuries with an associated neurogenic bladder, recurrent respiratory infections, irreversible nerve damage, and other serious complications." See June 9, 2004 statement. The evidence does not demonstrate that the Veteran filed a claim to reopen these claims prior to June 9, 2004. Thereafter, in a May 2011 rating decision, the RO granted service connection for spondylosis, marked degenerative disc disease of the lumbar spine and assigned a 40 percent disability evaluation, effective June 9, 2004. The RO also granted service connection for right and left lower extremity lumbar radiculopathy and assigned a 10 percent rating for each extremity, effective June 9, 2004. The RO further granted service connection for neurogenic bladder and assigned a 10 percent rating effective June 9, 2004. In a March 2012 statement, the Veteran disagreed with the effective dates assigned. After having carefully reviewed the evidence of record, the Board finds that the evidence does not support entitlement to effective dates earlier than June 9, 2004 for the grant of service connection for a low back disability, radiculopathy of the right and left lower extremities, and neurogenic bladder. In fact, the Veteran is precluded from obtaining an earlier effective date. The reasons follow. On June 9, 2004, the Veteran filed a claim to reopen service connection for "spinal injuries with an associated neurogenic bladder, recurrent respiratory infections, irreversible nerve damage, and other serious complications." In an October 2004 rating decision the RO declined to reopen the Veteran's previously denied claim for service connection for a back disorder. In a June 2010 decision, the Board reopened the claim for service connection for a low back disorder and remanded the claim for a VA spine examination. This Board decision reopened the claim based on new and material evidence under 38 C.F.R. § 3.156(a); the claim was not reopened because of newly obtained service department records. Based in part on the July 2010 VA spine examination (as requested by the June 2010 Board decision), the Veteran's claim for service connection for a lumbar spine disorder was granted in the May 2011 rating decision. The RO also granted service connection for neurogenic bladder, and right and left lower extremity radiculopathy as secondary to the service-connected lumbar spine disability. An effective date of June 9, 2004, was assigned, which the RO explained was the date the claim to reopen was received. As noted above, 38 C.F.R. § 3.400(q)(2), provides that the effective date of the grant of service connection after the receipt of new and material evidence following a final disallowance is the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. Here, the Veteran has already received an effective date of June 9, 2004, the date of his claim to reopen service connection for a low back disorder. The evidence does not demonstrate that the Veteran filed a claim to reopen the claim for a low back disorder prior to June 9, 2004. Accordingly, an earlier effective date cannot be awarded under VA regulations for the Veteran's low back disability. Further, as the effective dates for neurogenic bladder and right and left lower extremity radiculopathy are secondary to the service-connected lumbar spine disability, earlier effective dates prior to June 9, 2004 are also not warranted for these claims. For these reasons, entitlement to effective dates earlier than June 9, 2004, for the award of service connection for a low back disability, neurogenic bladder, and right and left lower extremity radiculopathy cannot be granted, as there is nothing in the record to provide a basis to award an earlier effective dates. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (in case where law, as opposed to facts, is dispositive, claim should be denied or appeal terminated because of the absence of legal merit or lack of entitlement under the law). TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2015). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b) (2015). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015). The effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2015). An exception to that rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In such an instance, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." 38 U.S.C.A. § 5110(b)(2) (West 2014); see also 38 C.F.R. § 3.400(o)(2) (2015); Harper v. Brown, 10 Vet. App. 125 (1997). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. Hurd v. West, 13 Vet. App. 449 (2000). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that June 9, 2004, is the correct date for the grant of entitlement to TDIU. In this regard, the evidence of record clearly reflects that the RO awarded the Veteran entitlement to TDIU, effective June 9, 2004, as this was the date that entitlement to a TDIU was raised (based on the Veteran meeting the percentage requirements for TDIU on that date). See 38 C.F.R. §§ 4.16(a), 4.25. Prior to June 9, 2004, the Veteran was service-connected for hearing loss (rated as 40 percent disabling effective June 1989) and tinnitus (rated as 10 percent disabling effective June 1989). On June 9, 2004, the Veteran submitted a claim to reopen the claims for service connection for a low back disorder, to include associated neurological and bladder disabilities, and also raised the issue of unemployability. Subsequently, he was granted service connection for a lumbar spine disability (rated as 40 percent disabling effective June 9, 2004); neurogenic bladder (rated as 10 percent disabling effective June 9, 2004); left lower extremity lumbar radiculopathy (rated as 10 percent disabling effective June 9, 2004); and right lower extremity lumbar radiculopathy (rated as 10 percent disabling effective June 9, 2004). As discussed in the sections above, the Board has found that the earliest effective dates for the grant of service connection for the lumbar spine disability, neurogenic bladder, left lower extremity lumbar radiculopathy, and right lower extremity lumbar radiculopathy disabilities is June 9, 2004. A TDIU award is not permissible prior to the effective date of the award of service connection for the underlying disabilities. The Board acknowledges that the Veteran was service-connected for hearing loss and tinnitus effective June 1989. As such, the Board must consider whether the Veteran should be granted an earlier effective for entitlement to TDIU based on the disabilities for which service connection was in effect prior to June 9, 2004. As an initial matter, the Board notes that the Veteran's then-service-connected disabilities did not meet the percentage rating standards for TDIU prior to June 9, 2004. 38 C.F.R. § 4.16(a). Nevertheless, the Board must consider whether the evidence warrants referral to the appropriate VA officials for entitlement to a total disability rating for compensation purposes based on individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. §4.16(b). See Bowling, 15 Vet. App. at 6. For a Veteran to prevail on a claim for entitlement to TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Upon review of the evidence of record, the Board finds that referral to the appropriate VA officials (Director of Compensation Service) for entitlement to a total disability rating for compensation purposes based on individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. §4.16(b) is not warranted. In a November 1990 medical report from Dr. R.R. the Veteran was found to be disabled as a result of his low back disability. Dr. R.R. stated that the Veteran was not recommend to engage in heavy labor, but would approve sedentary work activities. Social Security Disability records, to include the Veteran's hearing testimony in November 1988, show that the Veteran's spine disorder was the main factor in awarding disability benefits. In sum, the evidence of record, to include the Veteran's statements, demonstrates that the Veteran is unable to obtain or maintain employment as a result of his spinal injuries and associated neurogenic bladder and nerve disorders. However, as noted above, the Veteran was not service-connected for any of these disabilities prior to June 9, 2004. As such, remand for referral to VA's Director of Compensation Service is not warranted and entitlement to a TDIU on an extraschedular basis prior to June 9, 2004 is denied. ORDER An initial disability rating of 40 percent, but no higher, for neurogenic bladder is granted. Service connection for an acquired psychiatric disorder, to include as secondary to a service-connected disability is denied. Entitlement to an effective date prior to June 27, 1989, for the grant of service connection for hearing loss is denied. Entitlement to an effective date prior to June 27, 1989, for the grant of service connection for tinnitus is denied. Entitlement to an effective date prior to June 9, 2004, for the grant of service connection for a low back disability is denied. Entitlement to an effective date prior to June 9, 2004, for the grant of service connection for lumbar radiculopathy of the right lower extremity is denied. Entitlement to an effective date prior to June 9, 2004, for the grant of service connection for lumbar radiculopathy of the left lower extremity is denied. Entitlement to an effective date prior to June 9, 2004 for the grant of service connection for neurogenic bladder is denied. Entitlement to an effective date prior to June 9, 2004 for the grant of a total disability rating based on individual unemployability due to service-connected disabilities is denied. ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs