Citation Nr: 1618433 Decision Date: 05/09/16 Archive Date: 05/19/16 DOCKET NO. 12-17 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased (compensable) rating for hearing loss. 2. Entitlement to service connection for erectile dysfunction (ED) to include as secondary to service-connected diabetes mellitus, type II (DM). 3. Entitlement to service connection for hypertension to include as secondary to DM. 4. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for lumbar spine disability, and if so, whether service connection is warranted. 5. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for cervical spine disability, and if so, whether service connection is warranted. 6. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a left shoulder disability, and if so, whether service connection is warranted. 7. Entitlement to an increased evaluation for posttraumatic stress disorder (PTSD), currently rated as 50 percent disabling, to include entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and Mr. F.A. ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which denied an increased rating for PTSD and from a September 2012 rating decision which denied the claimed service connection issues. In February 2016, the Veteran testified before the undersigned at a Travel Board hearing. FINDINGS OF FACT 1. In February 2016 at his Board hearing and prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeal as to the issue of an increased rating for hearing loss was requested. 2. The Veteran's service-connected DM has aggravated his ED. 3. The Veteran's hypertensive vascular disease is attributable to service. 4. In a March 2002 rating decision, the RO denied service connection for degenerative changes of the lumbar and cervical spine, and left shoulder. The Veteran did not perfect an appeal. 5. In an April 2003 rating decision, the RO determined that new and material evidence had not been submitted to reopen the claim of service connection for degenerative arthritic changes of the lumbar spine. The Veteran did not perfect an appeal. 6. Evidence submitted since the RO's March 2002 and April 2003 decisions, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claims, and therefore raises a reasonable possibility of substantiating the claims. 7. The Veteran suffered a combat injury to the lumbar spine during service which resulted in current degenerative joint and disc disease. 8. The Veteran suffered a combat injury to the cervical spine during service which resulted in current degenerative joint and disc disease. 9. The Veteran suffered a combat injury to the left shoulder during service which resulted in current degenerative joint disease. 10. The Veteran's PTSD causes occupational and social impairment, with deficiencies in most areas, but does not result in total occupational and social impairment. 11. The Veteran meets the schedular criteria for a TDIU and the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the Veteran as to the issue of an increased rating for hearing loss have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). 2. ED is aggravated by service-connected DM. 38 U.S.C.A. §§ 1101, 5107 (West 2014); 38 C.F.R. § 3.310 (2015). 3. Hypertensive vascular disease was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304. 3.306 (2015). 4. The RO's March 2002 rating decision which denied service connection for degenerative changes of the lumbar and cervical spine, and left shoulder is final. 38 U.S.C.A. § 7105 (West 2014). 5. The RO's April 2003 rating decision which determined that new and material evidence had not been received to reopen the claim of service connection for degenerative arthritic changes of the lumbar spine is final. 38 U.S.C.A. § 7105 (West 2014). 6. New and material evidence has been received since the RO's March 2002 rating decision; thus, the claims of service connection for cervical and left shoulder disabilities are reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). 7. New and material evidence has been received since the RO's April 2003 rating decision; thus, the claim of service connection for lumbar spine disability is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). 8. Degenerative joint and disc disease of the lumbar spine was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304. 3.306 (2015). 9. Degenerative joint and disc disease of the cervical spine was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304. 3.306 (2015). 10. Degenerative joint disease of the left shoulder was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304. 3.306 (2015). 11. The criteria for a 70 percent rating for PTSD are met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2015). 12. The Veteran is individually unemployable by reason of his service-connected disabilities. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341(a), 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Issue Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. The Veteran has withdrawn his appeal as to the issue of an increased rating for hearing loss and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to the issue of an increased rating for hearing loss and it is dismissed. Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Here, the Veteran was provided with the relevant notice and prior to the initial adjudication of the claims as well as afterwards. The letters are dated in July 2008, March 2009, June 2009, and March 2010. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Veteran has not alleged any notice deficiency during the adjudication of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service treatment records (STRs), VA records, and identified private treatment records have been obtained and associated with the record. The Veteran was also provided with VA examinations which, collectively, are adequate as the record was reviewed, the examiner reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, and provided rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was specifically examined to assess the severity of this disability in question. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The records satisfy 38 C.F.R. § 3.326. Finally, the Veteran testified at a Board hearing. The hearing was adequate as the Veterans Law Judge who conducted the hearing explained the issues and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). In summary, the Board finds that it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence should be submitted to substantiate the claims. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Combat Status The Veteran served in combat during the Vietnam Era. His DD Form 214 confirms that, among other awards, he was awarded three Purple Heart medals. This is prima facie evidence of his combat service, meaning conclusive evidence he participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99 (October 18, 1999). This determination is made on a case-by-case basis. See also Moran v. Peake,525 F.3d 1157 (Fed. Cir. 2008). In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish entitlement to service connection, however, there still must be evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. In addition, hypertension and arthritis will be presumed to have been incurred in or aggravated by service if such diseases become manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic diseases shows as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the nonservice-connected disease or injury. Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994). There must be competent evidence of a current disability; evidence of a service-connected disability; and competent evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims ("the Court") has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a nonservice-connected disability is proximately due to or the result of a service connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. At his Board hearing, the Veteran testified that he had been awarded three Purple Heart medals. He indicated that the incidents leading to those awards caused his current orthopedic disabilities. In the first incident, the Veteran related that his vehicle ran over a land mine which resulted in the driver's death and injuries to his ears, shrapnel wounds, and caused the Veteran to hardly be able to walk because he was thrown 30 feet and landed flat on his back. He said that he was hospitalized and had to lie on his stomach for three weeks. Nonetheless, he was returned to the field due to a shortage of personnel, but he continued to experience pain. In the second incident, the Veteran related that he was shot in the hand and he also suffered a wound to his forehead. In this third incident, he was blown off of a half-track with an RPG which resulted in shrapnel wounds and burns to his right arm. He also landed on the ground with that incident which resulted in additional injuries to the neck and left shoulder as well as the low back. After service, the Veteran related that he had a regular doctor, but he retired decades ago. The Veteran indicated that he had more problems with his back than with his left shoulder. Post-service, the Veteran developed hypertension and ED. The Veteran also indicated that although he told a VA examiner that his ED preceded his service-connected DM, his memory is very faulty and he gets mixed up. His friend testified that the Veteran had symptoms of DM well before he had a diagnosis of that disorder and the symptoms preceded the ED. The Veteran testified to having DM symptoms prior to experiencing ED. He also remembered that his doctor gave him pills to help with his ED and that happened after the DM symptoms started. With regard to hypertension, the Veteran testified that he did not think he had that disease in the military, but otherwise, he had had hypertension for as long as he could remember although he did not go to the doctor for it because he did not have insurance. He related that he would use the blood pressure machine at the grocery store. The record reflects treatment for the Veteran's claimed disabilities. Neither hypertension nor ED was shown during service and the Veteran does not contend such. Rather, the Veteran contends that his hypertension is the result of inservice combat stressful situations and their effect on him over time. He contends his ED is the result of his service-connected DM or that it has been worsened by his DM. On a March 2011 DM examination, it was noted that the Veteran had recently been diagnosed as having DM the year before. At that time, the Veteran told the examiner that he had experienced ED since before the DM. Although at his hearing the Veteran indicated that he had symptoms of DM prior to the diagnosis, the record does not show that there were symptoms prior to the ED. Since the Veteran admitted that his memory was faulty in that regard, the Board finds that the clinical records are more probative as to the onset dates. An August 2012 VA medical opinion indicated that the Veteran's DM did not cause ED because the ED preceded the DM by at least 10 years. The examiner also opined that there was no objective evidence of any worsening of the ED since the DM diagnosis. However, the Veteran testified that his ED had in fact worsened. The Veteran is competent to make that report as it is completely within his ability to observe. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). The Board then is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service connection. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). The Board finds that the Veteran provided credible testimony that his ED has worsened even though the VA examiner opined otherwise. Significantly, while the worsening of ED has an objective component, the Veteran can subjectively make this report based on his personal experience. Accordingly, service connection for ED as secondary to DM is warranted. With regard to hypertension, the VA examiner in August 2012 also indicated that the DM did not cause or aggravate the hypertension. However, a private examiner, in March 2016, indicated that he had reviewed the Veteran's records and it was his opinion that the Veteran's current hypertensive vascular disease was caused by his military combat service. The VA examiner did not provide any opinion regarding direct service connection. In view of the Veteran's extensive combat service resulting in three Purple Hearts, the private opinion and in affording the Veteran all reasonable doubt, service connection is warranted for hypertension. New and Material The service treatment records (STRs) reflected that the Veteran injured his low back when he ran over a land mine. He had pain in the lower back area. The STRs further noted a back condition in 1968. The personnel records also documented the back injury. The discharge examination reflected that the Veteran reported having back trouble and back pain. On an October 1969 VA examination, the Veteran also reported having pain in the trapezius muscles. Multiple shell fragment wounds were identified. An October 1969 rating decision denied service connection for a back disability as a back disability was not shown on the VA examination. The Veteran did not initiate an appeal. On an April 1972 VA examination, the Veteran reported having problems with his back. However, x-rays only showed a congenital abnormality. An August 1972 rating decision confirmed and continued the October 1969 rating decision. It was noted that the Veteran's back was essentially normal on examination. The Veteran did not initiate an appeal. In October 1997, the Veteran underwent a magnetic resonance imaging (MRI) of the spine following a car accident. This MRI showed degenerative changes in the lumbar spine. The Veteran also had disc problems at that time. A September 1998 MRI of the left shoulder revealed degenerative changes of the acromioclavicular joint resulting in a moderate grade of impingement upon the rotator cuff. Subsequent February 2001 cervical spine and lumbar spine x-rays revealed degenerative changes in both the cervical and lumbar spine. In December 2001, the Veteran was afforded a VA examination. At that time, the Veteran reported his inservice combat injuries. He indicated that he had injuries to his neck, low back, and left shoulder with no fractures. The examiner opined that it was more likely than not the Veteran's present difficulty with his cervical and lumbar spine was related to the accident that he had in the service which resulted in a tremendous impact which blew him out of a vehicle on two occasions. The examiner opined that the back and neck pain had been continuous since that time and had led to traumatic degenerative joint changes in the cervical and lumbar spine. The examiner opined that the left shoulder pain he described was related to his cervical spine and not his shoulder itself. In a February 2001 statement received in January 2003, C.E.B. who was stationed with the Veteran in Vietnam, indicated that the Veteran had been hospitalized with back wounds. A March 2002 rating decision denied service connection for degenerative changes of the lumbar and cervical spine, and left shoulder. The Veteran did not initiate an appeal. In an April 2003 rating decision, the RO determined that new and material evidence had not been submitted to reopen the claim of service connection for degenerative arthritic changes of the lumbar spine. The Veteran did not initiate an appeal. VA 2006 records confirmed cervical and lumbar disabilities. In a February 2008 statement, the Veteran's sister indicated that the Veteran had muscle spasms in his neck, shoulders, and back. In April 2012, the Veteran was afforded a VA back examination. At that time, the inservice combat incidents were noted as well as the fact that the Veteran had car accident after service which the Veteran felt made his lumbar spine worse. However, the Veteran indicated that his spine injuries began after the inservice incidents when he was thrown from his vehicle. The examiner opined that the lumbar spine disability was less likely as not (less than 50/50 probability) caused by, or a result of, or aggravated.by the landmine incident in active duty. The examiner noted that the STR documented one incident of Veteran being blown out of his vehicle after a land mine explosion, diagnosed as acute back strain, with normal neurological exams and normal x-rays. Although the Veteran reported "Frequent low back pain" on his May 29, 1969 Report of Medical History, the examination was normal. The examiner felt that the Veteran's degenerative changes on imaging were consistent with aging process and that disc bulging from the car accident could not be ruled out. The examiner noted that there is no history of vertebral fracture or damage to the spine after the landmine incident in service. There was a report of shrapnel in the skin of the back and that would cause transient back area pain, but not changes in the lumbar spine. The examiner opined that landing on his back would cause acute back strain as documented, but that would be mechanical type back pain [muscle] and resolve with treatment and rest, and does not cause arthritis of the spine [bone]. The examiner opined that the Veteran's cervical spine disability was less likely as not (less than 50/50 probability) caused by or a result of combat shown during active duty because the STR documented the land mine incident in 1967, but the note was silent for cervical spine injury or neck complaints. There was no history of neck complaints/evaluation/treatment in active duty. There was no history of cervical spine fracture or trauma to the spine from the land mine incident in active duty that could have caused post-traumatic changes. Rather, degenerative changes in the cervical spine showed up in the 2001 x-rays, 32 years after active duty. The examiner opined that these changes were consistent with those seen from aging. With regard to the left shoulder disability, it was less likely as not (less than 50/50 probability) caused by or a result of combat shown during active duty. The examiner indicated that the STR documentation of the land mine incident in 1967 was silent for left shoulder condition and so were the subsequent STRs. The claimed left shoulder condition was not documented until almost 30 years after service and aging and other daily/occupational stresses could not be ruled out as the more likely causes of claimed left shoulder condition. In Mach 2016, the Veteran's private physician, Dr. L.G. opined that current osteoarthritis of the joints were due to the inservice combat injuries and activities. The March 2002 rating decision which denied service connection for degenerative changes of the lumbar, cervical and left shoulder was final since the Veteran did not initiate an appeal. In an April 2003 rating decision, the RO determined that new and material evidence had not been submitted to reopen the claim of service connection for degenerative arthritic changes of the lumbar spine. That decision is also final. 38 U.S.C.A. § 7105. Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decisionmakers. 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). According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been submitted, the truthfulness of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person(s) making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993); but see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). Furthermore, the Federal Circuit has indicated that evidence may be considered new and material if it contributes to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. The March 2016 private medical opinion supports the claims on appeal. Thus, there is sufficient evidence to warrant a reopening of the claim based on the new and material and the claims of service connection for lumbar, cervical, and left shoulder disabilities are reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. The Veteran suffered multiple combat injuries during service. The low back injury was specifically documented. The Veteran testified that the neck and left shoulder were thereafter injured in the third combat injury incident which also affected the low back. The Board has no reason to doubt the credibility of his statements, especially since he was awarded three Purple Hearts and was in the field when the reported injuries occurred. When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which he served, his military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a). In the Veteran's case, the circumstances of his service were combat-related. In taking into consideration the Reeves case, the Board is required to apply the section 1154(b) and 3.304(d) presumption to both the claimed injury and the claimed resultant disability. The Board accepts that back, neck, and left shoulder injuries occurred and that it resulted in actual disabilities at that time. In addition, the Board finds credible the lay evidence that the Veteran continued to experience pain in these areas. On his post-service VA examination, he described trapezius pain basically between his neck and shoulder. In addition, the records reflect his repeated complaints of back pain. The Veteran has been diagnosed with arthritis of the lumbar, cervical, and left shoulder areas. He also has lumbar and cervical disc disease. The 2012 VA examiner felt that the current disabilities were not related to inservice combat incidents, but were rather the result of the aging process although contribution from the car accident post service could not be excluded. In contrast, the December 2001 VA examiner opined that lumbar and cervical spine disabilities were related to the inservice incidents, although this examiner did not feel that there was left shoulder pathology. The March 2016 private physician attributed the arthritis diagnosis to the inservice combat injuries. With regard to the 2012 VA examiner, this examiner discounted the relationship between current neck and shoulder disabilities to service due to the lack of documentation of injury. However, since the Veteran's injuries were combat related, there does not need to be documentation. With regard to the lumbar spine, the examiner only considered the first incident during service, but not the third when the Veteran was again thrown from a vehicle. The private 2016 opinion did not provide much rationale. None of the medical opinions is complete. However, in considering the combat awards which recognize injuries, the Reeves case, and the lay evidence, the Board finds that there is both competent and credible supporting the occurrence of lumbar, cervical, and left shoulder injuries; evidence of disabilities during service per Reeves; continual lay complaints post-service so competent and credible evidence of continuity of symptomatology; medical evidence of a positive nexus to service; and in affording the Veteran all reasonable doubt, the Board concludes that service connection is warranted for degenerative joint and disc disease of the lumbar and cervical spine as well as degenerative joint disease of the left shoulder. Rating Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. However, if VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Cf. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (Board finding that veteran had disability "at some point during the processing of his claim," satisfied service connection requirement for manifestation of current disability); Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court found no basis for drawing a distinction between initial ratings and increased rating claims for applying staged ratings. Accordingly, it was held that ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In this case, there has not been a material change in the disability level and a uniform rating is warranted. The regulations for mental disorders are found in 38 C.F.R. §§ 4.125-4.130. The Board notes that psychiatric disabilities evaluated under Diagnostic Code 9411 are rated according to the General Rating Formula for Mental Disorders. A 50 percent rating is provided for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is provided 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is provided 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. §§ 4.125-4.130. The Board further notes that a GAF rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). The Board notes that an examiner's classification of the level of psychiatric impairment, by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). 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). See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130. March 2009 VA records noted a GAF score of 45 indicative of serious symptoms. The Veteran reported having both auditory and visual hallucinations at times. This GAF score was consistent with prior GAF scores from several years prior. In January 2010, the Veteran was afforded a VA examination. At that time, he reported that he was twice divorced and had 5 grown children who he was not close to. He did not have any close friends. On examination, his clothes were disheveled, he mumbled, and he appeared restless. He was attentive with full affect, but his mood was poor. He could not spell "world" backwards or perform serial 7's. He was fully oriented. His thought process was unremarkable. He did not have delusions and his judgment was acceptable. He partially understood that he had a problem. Sleep and energy were poor. There were no hallucinations or inappropriate behavior. He could not interpret proverbs. There was no obsessive or ritualistic behavior. No panic attacks were shown. There was no presence of suicidal or homicidal thoughts. Impulse control was fair with no episodes of violence. He was able to perform activities of daily living and hygiene activities. His recent memory was mildly impaired. The Veteran retired in 2001. The Veteran had recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions, recurrent distressing dreams of the event as well as physiological reactivity on exposure to internal or external cues that symbolized or resembled an aspect of the traumatic event. The Veteran made efforts to avoid activities, places, or people that aroused recollections of the trauma. There was a sense of a foreshortened future. The Veteran had difficulty falling or staying asleep as well as hypervigilance. The Veteran was briefly tearful during examination. He avoided thinking/talking about trauma. There was increased arousal, problems with sleep, persistent anger and irritability, concentration issues, and startle response. The GAF was 60 which indicated moderate impairment. However, the examiner felt that the PTSD was mild, with mild hypervigilance. Cocaine use was noted. A statement was then received from the Veteran's sibling who indicated that the Veteran did not get along with others including her and his children. She reported that he would lose his temper and fly off the handle which was consistent with the Veteran's report that he was angry and irritable. At his Board hearing, the Veteran related that he was fired from employment 15 years ago due to his problems working with others. He stated that he was irritable, mean, and hateful. He also was twice divorced. He reported social isolation and stated that he did not know his next door neighbor's name. He reported that he was better off on his own. He said that he did not like being around people. He indicated that he had had suicidal and homicidal ideation. He indicated that while he did not have obsessional rituals, he did not like the way he did things to be interrupted. He related that he had problems with nightmares and flashbacks. He said that he had problems sleeping and with night sweats. When he would awake from a nightmare, he felt like he was suffocating. He indicated that he locked his doors and windows and would recheck them. He said that he had panic attacks and anxiety as well as frustration where he felt like he would hyperventilate. He described having road rage. He reported that he had some memory problems and sometimes forgot where he was or the names of people and places. He related that he had startle response. He indicated that he still smelled blood and death. The Veteran's friend indicated that the Veteran sometimes forgot to shower and would not change his clothes. He related that the Veteran had become more withdrawn. The Board finds that the Veteran's symptoms more nearly approximate a 70 percent rating indicative of occupational and social impairment, with deficiencies in most areas. The Board finds particularly probative the testimony of the Veteran and his friend during the hearing. Their testimony is consistent with the 45 GAF score present in the 2009 records as well as earlier records. Although the VA examination indicated only mild impairment, in viewing the symptoms, the Board finds that the Veteran has demonstrated more severe symptoms which were not fully explored or described on VA examination. Also, even though the Veteran indicated almost total social isolation, the examiner indicated that the impairment in that area was mild and transient which is inconsistent with the Veteran's report, as supported by his sibling and friend. Overall, the Veteran had problems with work, strained relationships, a history of suicidal and homicidal ideation, pain and anxiety attacks, impaired impulse control, some neglect of personal appearance and hygiene, and difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is not warranted because the veteran's PTSD was not productive of total occupational and social impairment. The Veteran does not have symptoms such as gross impairment in thought processes or communication. He does not suffer from persistent delusions or hallucinations, although he has had some hallucinations, but not persistently. His behavior is not grossly inappropriate. He is able to perform activities of daily living. He is oriented to time and place. The Veteran has some memory impairment, but he does not have memory loss for names of close relatives, own occupation, or own name. The Board is aware that the symptoms listed under the 100 percent evaluation are essentially examples of the type and degree of symptoms for that evaluation, and that the Veteran need not demonstrate those exact symptoms to warrant a 100 percent evaluation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Veteran, however, also does not have other similar severe symptoms. Accordingly, the Board concludes that the criteria for a 100 percent rating are not met. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the evidence supports a higher rating of 70 percent. In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran'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." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto 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 C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's PTSD are not shown to cause any impairment that is not already contemplated by the relevant diagnostic code, as cited above, and the Board finds that the rating criteria reasonably describe his disability. There have not been any hospitalizations or marked interference with employment beyond what is specifically described in the rating criteria already. Therefore, referral for consideration of an extraschedular rating is not warranted. The Court has held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for higher compensation. In Roberson v. Principi, 251 F.3d 1378, 1384 (2001), the Federal Court held that once a claimant: (1)submits evidence of a medical disability, (2) makes a claim for the highest possible rating, and (3) submits evidence of unemployability, an informal TDIU claim is raised under 38 C.F.R. § 3.155(a). However, there must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). The Board has jurisdiction to consider entitlement to a TDIU in an appealed claim for an higher rating when the issue is raised by assertion or reasonably indicated by the evidence, regardless of whether the RO expressly addressed the issue. See VAOPGCPREC 6-96 (Aug. 16, 1996).; see also Caffrey v. Brown, 6 Vet. App. 377, 382 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). However, the question of TDIU entitlement may be considered a component of an appealed higher rating claim only if the TDIU claim is based solely upon the disability or disabilities that are the subject of the higher rating claim. VAOPGCPREC 6-96. The Veteran and his representative raised the issue of entitlement to a TDIU at his Board hearing. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). VA interprets the schedular requirements in 38 C.F.R. 4.16(a) to mean that a combined 70 percent rating is only required if no single disability is rated at 60 percent disabling. See VBA Fast Letter No. 13-13 (June 17, 2013). VA does not presume a claim for a TDIU is a claim for increase in all service-connected disabilities. See VBA Fast Letter No. 13-13 (June 17, 2013). The Veteran is service-connected for PTSD, rated as 70 percent disabling. He also is service-connected for hypertensive vascular disease, ED, degenerative joint and disc disease of the lumbar spine, degenerative joint and disc disease of the cervical spine, degenerative joint disease of the left shoulder, DM, tinnitus, right hand disability, bilateral hearing loss, otitis media, and scars from multiple shell fragment wounds. The Veteran has met the schedular criteria, per 38 C.F.R. § 4.16(a) even exclusive of the disabilities for which service connection is being granted in this decision and for which no disability rating has as of yet been assigned. Thus, the issue is whether his service-connected disabilities precluded him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). For the Veteran to prevail in his claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The record indicates that the Veteran has not worked in over a decade. Although his SSA records indicated lung impairment, it is clear that the Veteran also cannot work due to his PTSD with complications from his other disabilities. His PTSD results in impairment in his ability to function with others in the work place, also interfering with all employment; and his multiple orthopedic disabilities further impair his ability for employment including sedentary employment. In this case, the Veteran meets the threshold requirements for a TDIU. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Further, in viewing the medical evidence of record, as well as the Veteran's statements, the Board finds that a TDIU is warranted. In considering his disabilities cumulatively, the Board finds that the Veteran is unemployable based on the nature and severity of the service-connected disabilities. The Veteran is to be afforded every reasonable doubt. See 38 U.S.C.A. § 5107. The Board has resolved all reasonable doubt in this case in the Veteran's favor. Accordingly, a total disability rating based upon individual unemployability due to service-connected disabilities is warranted. (Continued on the next page) ORDER The appeal as to the issue of an increased rating for hearing loss is dismissed. Entitlement to service connection for ED is granted. Entitlement to service connection for hypertensive vascular disease is granted. Entitlement to service connection degenerative joint and disc disease of the lumbar spine is granted. Entitlement to service connection for degenerative joint and disc disease of the cervical spine is granted. Entitlement to service connection degenerative joint disease of the left shoulder is granted. Entitlement to a 70 percent rating for PTSD is granted, subject to the law and regulations governing the payment of monetary benefits. A TDIU is granted, subject to the law and regulations governing the payment of monetary benefits. ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs