Citation Nr: 1630621	
Decision Date: 08/02/16    Archive Date: 08/11/16

DOCKET NO.  13-17 004	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1.  Whether new and material evidence has been received to reopen the claim for service connection for rheumatoid arthritis.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for heart disorder, to include atrial fibrillation, and to include as secondary to service connected disability or exposure to herbicides.

4.  Entitlement to an effective date earlier than July 1, 2009 for the award of a 70 percent for posttraumatic stress disorder (PTSD) with alcohol abuse and dependency.

5.  Entitlement to an effective date earlier than July 1, 2009 for the award of a total disability rating due to individual unemployability due to service-connected disability (TDIU).

6.  Entitlement to an effective date earlier than July 1, 2009 for the award of dependency educational assistance (DEA).  


REPRESENTATION

Appellant represented by:   Larry Shuh, Attorney-at-Law


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

G. E. Wilkerson, Counsel


INTRODUCTION

The Veteran served on active duty from September 1966 to August 1968.

These matters come before the Board of Veterans Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional
Office (RO) in Milwaukee, Wisconsin.

In March 2016, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the electronic claims file.  

In May 2016 and July 2016, the Veteran submitted notices of disagreement with respect to the recent denials of his claims for service connection for hypertension and kidney cancer, as well as the ratings assigned for the service-connected peripheral neuropathy of the right and left lower extremities.  The record reflects that the Agency of Original Jurisdiction is undertaking appropriate development on these matters.  As such, the Board will not accept jurisdiction over them at this time, but they will be the subject of a subsequent Board decision, if otherwise in order. 

This appeal was processed using the Virtual VA and VBMS paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.


FINDINGS OF FACT

1. In an unappealed September 2008 rating decision, the RO denied the Veteran's application to reopen the claim for service connection for rheumatoid arthritis.  New and material evidence was not received regarding this claim in the year after the decision was issued.
 
 2. The evidence associated with the claims file subsequent to the RO's September 2008 rating decision is cumulative and redundant of evidence already of record at the time of that decision.

3.  Tinnitus did not manifest in service or within one year of separation from service and is not otherwise related to service.

4.  The Veteran served in Vietnam and is presumed to have been exposed to Agent Orange.

5. The Veteran does not have a heart disorder, to include ischemic heart disease, that is presumed to be service connected in veterans exposed to Agent Orange.

6.  A heart disorder did not manifest in service or within one year of separation from service and is not otherwise related to service.

7.   Prior to February 23, 2009, the Veteran's PTSD with alcohol abuse and dependency was productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships; occupational and social impairment, with deficiencies in most areas is not shown during this period.

8.    Prior to July 1, 2009, the Veteran failed to meet the schedular requirements for a TDIU and the Veteran was not unable to secure and follow a substantially gainful occupation by reason of his service-connected PTSD and diabetes mellitus.  Factors warranting a referral for TDIU on an extraschedular basis prior to July 1, 2009, are not present.

9.  Entitlement to basic eligibility for DEA benefits arose on July 1, 2009.


CONCLUSIONS OF LAW

1. The September 2008 rating decision denying the application to reopen the claim for service connection for rheumatoid arthritis is final. 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2015).
 
 2.  New and material evidence has not been received to reopen the claim of service connection for rheumatoid arthritis. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).

3.  Tinnitus was not incurred in or aggravated by active service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015).

4.  A heart disorder was not incurred in or aggravated by service or to service-connected disability; nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159  3.303, 3.307, 3.309, 3.310 (2015).

5.  The criteria for an initial 50 percent rating, but no greater, for PTSD prior to February 23, 2009, are met. 38 U.S.C.A. §§ 1155  5107, 5110(b) (West 2014); 38 C.F.R. §§ 3.102, 3.400, 4.7, 4.130, Diagnostic Code 9411 (2014).

6.  The criteria for an effective date earlier than July 1, 2009, for the award of a TDIU have not been met.  38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.400, 4.16 (2015).

7.  The criteria for an effective date earlier than July 1, 2009 for the award of DEA benefits have not been met. 38 U.S.C.A. §§ 3500, 3501, 3510 (West 2014); 38 C.F.R. § 21.3020 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. The Veterans Claims Assistance Act

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. § 3.159 (2015).

Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) .

The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)  apply to all five elements of a service connection claim. Those five elements include: 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 (2006).

In regard to the claims for service connection and the claim to reopen, in December 2009, January 2010, and February 2010 pre-rating letters, the RO notified the Veteran of the evidence needed to substantiate the claims. These letters also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370   (2002).

The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claims, in the above letters.

With regard to the claims for earlier effective dates, the Courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a Notice of Disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  Consequently, further discussion of the VCAA's notification requirements with regard to these claims is unnecessary.

The Board further finds that VA has complied with the duty to assist by aiding the Veteran in obtaining evidence.  In this case, VA obtained the Veteran's service treatment records and all identified and available private treatment records.  With respect to the Veteran's Social Security records, a statement received in November 2009 reflects that the Veteran went on disability benefits in 1972 with a diagnosis of arthritis, and that additional evidence was no longer available because he converted to retirement benefits.  Accordingly, the Board finds that any further attempt to obtain Social Security records is not warranted.

The Veteran also presented testimony at a hearing in March 2016.  During the hearing, the Acting Veterans Law Judge clarified the issues.  His functional impairment and manifestations were addressed. The Veteran was provided an opportunity to submit additional evidence. The actions of the Veterans Law Judge supplement VCAA and comply with any duties owed during a hearing. 38 C.F.R. § 3.103.

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims herein decided are thus ready to be considered on the merits.

II. Application to Reopen

The RO originally denied the Veteran's claim for service connection for rheumatoid arthritis in an August 1972 rating decision. At the time of this rating decision, the evidence of record consisted of the Veteran's service treatment records and post-service VA hospitalization and treatment reports.  

The RO denied the claim, noting that no arthritis treatment was shown in service, discharge examination was negative, and post-service records showed he gave a seven-month history of progressive, migratory polyarthritis when diagnosed with rheumatoid arthritis in June 1972.  

The Veteran has filed numerous applications to reopen the previously denied claim.  Most recently, in September 2008, the RO denied reopening the claim for service connection for rheumatoid arthritis, finding that new and material evidence had not been submitted.

The Veteran was notified of the September 2008 rating decision and of his appellate rights in a September 2008 letter. The Veteran did not appeal the decision or submit new and material evidence within one year of the decision. That decision thus became final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103.

The Veteran requested that VA reopen the previously denied claim of service connection in November 2009.  In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.

New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 

For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness).

The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material has been submitted is "low." The Board follows that threshold.  See Shade v. Shinseki, 24 Vet. App. 110, 117  (2010).

Since the September 2008 rating decision, the newly-received evidence includes  additional VA outpatient treatment records, copies of service treatment records, various written statements from the Veteran, and the Veteran's March 2016 Board hearing testimony.  

VA outpatient treatment records note continued diagnosis and treatment of rheumatoid arthritis. 

During the Veteran's March 2016 Board hearing, he testified that he first noticed symptoms of joint pain at Fort Polk in 1966.  He noted that he experienced twinges of pain through the ankles and between his thumb and forefinger.  He indicated that he was given pain medication at the dispensary.  He noted that the pain worsened while he was stationed at Fort Benning.  There, he was told that he had synovial fluid in between in thumb and forefinger joint.  He was administered a cortisone shot.  He then was sent to Vietnam, where his joint problems spread.  He noted that he endorsed leg cramps on report of medical history at discharge.  He reported that he sought treatment approximately 1 year after discharge after an incident where he could not move while playing basketball.  At that time, he was found to have Reiter's Syndrome, and was subsequently diagnosed with rheumatoid arthritis.

To the extent to which the submitted evidence demonstrates treatment of a current rheumatoid arthritis, the claim was not previously denied on the basis of a lack of a current disability.  Evidence that confirms a previously established fact is cumulative.  The submitted treatment records do not document onset of rheumatoid arthritis during service or a nexus to service. In other words, the presence of a current disability was previously of record. Alone and in connection with evidence previously assembled, this evidence reflecting treatment for the claimed disability is duplicative rather than new and material. 38 C.F.R. § 3.156(a).  Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343  (Fed. Cir. 2000).

The Board also finds that the Veteran's contentions as to onset in service and the continuous, chronic nature of his rheumatoid arthritis disability are not new and material.  See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992) (explaining testimony concerning how the claimant's ankle was injured was not new as the Veteran made that assertion many years earlier).  In support of his prior original claim and claims to reopen, the Veteran reported that he sought treatment for joint pain and underwent injection in service.  For example, on his VA Form 21-526, Application for Compensation or pension received in May 1972, the Veteran noted treatment for arthritis in 1966 at Fort Polk and also in 1967 at Fort Benning.  In a March 1974 statement, the Veteran reported that his problems of stiffness of the bones and joints occurred in service and that he was continuing to have the same problems as he experienced in service.  In an April 1989 written statement, the Veteran indicated that he was treated for an arthritic condition in his hands at Fort Benning.  He noted that his joint problems began in service.  In October 2006 statement, the Veteran noted that he endorsed cramps in his legs on discharge from service, and when he first was diagnosed with rheumatoid arthritis, the symptoms were present in his leg.

In sum, the Veteran has not submitted new and material evidence documenting a current rheumatoid arthritis related to his in-service complaints, or otherwise suggesting a relationship between his rheumatoid arthritis and his active service. Stated differently, at the time of the prior decision there was evidence of current disability but no evidence of in-service disease or injury or of a nexus to service other than the Veteran's lay opinion. The newly-submitted evidence is cumulative in nature and does not address these deficiencies.

Thus, the claim for service connection for rheumatoid arthritis is not reopened.

III. Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

With chronic disease shown as such in service (or within the presumptive period under § 3.307), 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. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). The Court has established that 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331   (Fed. Cir. 2013).  38 U.S.C.A. § 1101. With respect to the current appeal, that list includes cardiovascular disease and organic diseases of the nervous system (including tinnitus). See 38 C.F.R. § 3.309(a).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including cardiovascular disease and organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service.  See 38 C.F.R. § 3.307.

A. Tinnitus

The Veteran contends that he has tinnitus due to his in-service noise exposure from his service in Vietnam, including weapons fire, mortars and rockets.  

The Veteran's service treatment records include no complaint, finding, or diagnosis related to the claimed tinnitus.  No abnormalities related to the ear or hearing were found on discharge examination, and the Veteran denied ear, nose, or throat trouble or hearing loss on report of medical history at discharge in August 1968.  

Following the Veteran's discharge from service, a VA medical record systems review report dated in May 18, 1989, reflects that the Veteran endorsed bilateral high frequency hearing loss, but denied tinnitus. 

VA Special Agent Orange, General Medical and Orthopedic Examination report dated May 18, 1989, notes that the Veteran had current complaints of intermittent tinnitus and bilateral high-frequency hearing loss.  Because of his complaints, he was afforded a Special Ear, Nose and Throat Examination on May 24, 1989.  The  Veteran expressed that he had hearing loss since 1968, which he attributed to exposure to artillery noise.  He denied tinnitus or symptoms suggesting labyrinthine dysfunction.  At that time, he was found to have normal auditory acuity bilaterally.

A March 2005 VA outpatient treatment report notes that the Veteran denied hearing difficulties, however, he endorsed intermittent tinnitus in December 2007.  

A January 2010 private audiology report from Wheaton Franciscan Medical Group indicates that the Veteran endorsed some intermittent tinnitus.  He reported a history of noise exposure in the military and at work.  A diagnosis of bilateral high frequency sensorineural hearing loss, most likely due to noise exposure, was indicated.  

On VA examination in August 2013 , the Veteran reported that his tinnitus began about 10 years prior with no precipitating noise events.  He stated that it started gradually occurring around that time.  The tinnitus occurred a couple times per week and typically lasted about 5 minutes.  The examiner determined that the Veteran's tinnitus was less likely than not a symptom associated with his hearing loss.  In so finding, he noted that, if tinnitus was caused by military noise exposure, there would not be a delayed onset of tinnitus.  In addition, the examiner noted that tinnitus was not reported soon after military service, as he denied tinnitus on examination in May 1989.  There was also no evidence that the Veteran's tinnitus was related to hearing loss caused by noise injury during military service, as there is no evidence the Veteran had hearing loss caused by noise exposure in the military.  The examiner noted that the May 1989 audiogram showed that the Veteran had hearing within normal limits across all frequencies in both ears, even many years after he was released from active service in 1968.  The examiner indicated that there was no scientific evidence to support the onset of hearing loss several years after noise exposure.  Therefore, he found that it could not be claimed that the tinnitus was caused by noise injury during military service since there was no evidence of noise injury.

During the Veteran's March 2016 Board hearing, he testified that the ringing in his ears began in service.  He indicated that he was stationed in Vietnam and the base was exposed to daily rocket and mortar attacks.  He indicated that while he was a cook in service, he also served as a machine gunner and trucks and was also exposed to loud noises from these duties.  He indicated that he did not wear ear plugs. 

In various written statements, the Veteran expressed that he was exposed to loud noise during his service in Vietnam during the Tet Offensive, including Howitzers and rockets.   

In this case, the Veteran has alleged onset of tinnitus in service, as indicated during the Board hearing.  While there is no disputing that the Veteran is competent to report on the symptoms he experiences and its history, see Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007), his statements of record do not establish a consistent report of symptomatology to establish chronicity or continuity since service.  Rather, post service treatment records document that the Veteran complained of more recent, post-service onset of tinnitus symptoms.  Service treatment records do not include a complaint, finding, or diagnosis of tinnitus.  Post-service, he specifically denied tinnitus in 1989 and he was first noted to have complaint of tinnitus in the ear in 2007.  On VA examination in August 2013, he reported a gradual onset of tinnitus 10 years prior which would place the onset to 2003. 

Moreover, there is no competent evidence of record otherwise linking the Veteran's tinnitus to his active service.  Instead, the only opinion on the matter weighs against the Veteran's claim. In this regard, the VA examiner in August 2013, a licensed audiologist, opined that, after review of the Veteran's claims file, including service treatment records and audiological examination, it was less likely as not that the Veteran's tinnitus is related to in-service noise exposure. The Board finds that the August 2013 VA opinion is competent and highly probative as the examiner reviewed the Veteran's service records and took a history from him and provided rational for his opinion. There is no contrary medical opinion on file.
The record establishes that an organic disease of the nervous system (tinnitus) was not "noted" during service or within one year of separation.  Furthermore, the objective evidence establishes that he did not have characteristic manifestations of the disease during service. 38 C.F.R. § 3.303(b). Rather, the in-service findings were normal.

The only other opinion with respect to etiology is that of the Veteran. The Veteran is competent to testify to his observations, and the VA examiner conceded his in-service noise exposure, as does the Board. However, on the question as to whether current tinnitus is related to in-service noise exposure, the specific, reasoned opinions of the VA audiologist and physician who performed the August 2013 VA examination is of greater probative weight than the more general assertions of the Veteran, even assuming the Veteran's competence to opine on this medical question. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433 , n. 4 (2011).  To the extent that the Veteran has placed on onset of tinnitus dating to service, the Board finds his statements not credible.  His assertions are outweighed by the remainder of the evidence that shows that tinnitus did not manifest in service or within the one year presumptive period or for many years thereafter, and that there is no relationship between current tinnitus and the conceded in-service noise exposure.

Based on the foregoing, the preponderance of the evidence is against the claim for service connection for tinnitus. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).

B.  Heart

The Veteran contends that he is entitled to a service connection for a heart disorder-namely, atrial fibrillation-as he believes that this disability is related to his in-service exposure to herbicides in Vietnam, or, in the alternative, that this disability is secondary to his service-connected PTSD.

In addition to the above-noted authority, VA laws and regulations provide that, if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii) . 

The listed diseases are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus (adult-onset diabetes), Hodgkin's disease, ischemic heart disease, chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). In addition, the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,39 -32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258 -21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540  (June 8, 2010). 

Under 38 C.F.R. § 3.310, service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).

The Board notes that the Veteran had active service during a period of war. Additionally, his DD 214 indicates that the Veteran had service in Vietnam and that he is in receipt of the Vietnam Service Medal with Silver Star, Republic of Vietnam Campaign Medal, Republic of Vietnam Meritorious Unit Citation (gallantry Cross Medal Color with Palm) and the Purple Heart Medal. Based on his service in the Republic of Vietnam, he is presumed to have been exposed to Agent Orange and other tactical herbicides.

As an initial matter, the Veteran's service treatment records include no complaint, finding, or diagnosis related to the claimed heart disability.  The heart was found normal on discharge examination in August 1968 and the Veteran denied palpitation or pounding heart and high or low blood pressure at that time.  

A May 1989 VA medical report indicates that the Veteran endorsed a history of hypertension as well as left chest pains 4 to 5 days prior that had subsided.  Otherwise, he denied heart disease, palpitations, or murmurs.  On VA examination in May 1989, a diagnosis of hypertension was noted.  

An August 2011 VA treatment report indicates that the Veteran presented for evaluation of heart failure.  It was noted that he presented in May 2011 with complaint of dyspnea and "water on his lungs." An echocardiogram showed a left ejection fraction of 45 to 50 percent.  He reported that his breathing had improved since that visit.  He occasionally had dyspnea with exertion, but denied chest pain.  He did not appreciate his irregular heartbeat, nor had he experienced tachycardia.  He was assessed with congestive heart failure, atrial fibrillation, aortic regurgitation, and pulmonary hypertension-likely multifactorial due to history of uncontrolled obstructive sleep apnea and left ventricular hypertension with hypertension.  

A July 2012 VA cardiology outpatient note indicates that the Veteran presented again for follow up of heart failure.  He reported that his breathing had improved and he had no limitations in walking.  Echocardiogram at that time revealed estimated left ventricular ejection fraction of 60 to 65 percent, mildly increased ventricular wall thickness, severely dilated right and left atria, moderate aortic regurgitation, and mild mitral valve regurgitation.  He was assessed with congestive heart failure, atrial fibrillation, aortic regurgitation, and pulmonary hypertension.

On VA examination in September 2012, the examiner noted that VA treatment records showed that the Veteran was hospitalized in December 2009 for new onset atrial fibrillation when he was seen in the emergency room for complaint of headache and dizziness.  He was also found to have slightly decreased left ventricular function with ejection fraction of 45 percent; however, most recent echo done in May 2012 showed this had resolved with normal left ventricular ejection fraction of 60 to 65 percent.  There was no evidence of ischemic heart disease/myocardial infarction/coronary artery disease as his stress myocardial perfusion study was normal in December 2009 with no ischemia and ejection fraction of 50 percent.  He was started on Coumadin and his rate had been controlled with no evidence of progressive atrial fibrillation because he had remained asymptomatic.  

The examiner noted that the Veteran had the following risk factors for developing this conduction disorder, including longstanding uncontrolled hypertension, moderate pulmonary hypertension, obstructive sleep apnea, and longstanding renal insufficiency.  The examiner noted that while his diabetes type 2, diagnosed in 2008, normally would be a risk factor, the Veteran had managed his diabetes well with diet and exercise and no use of oral agents or insulin.  

The Veteran reportedly was doing well regarding the atrial fibrillation with no complaints.  He did have occasional palpitations with over-exertion.

The examiner diagnosed supraventricular arrhythmia, and noted a date of diagnosis of December 2009.  The examiner indicated that none of the Veteran's heart conditions qualified within the generally accepted medical definition of ischemic heart disease.  He opined that the Veteran's atrial fibrillation is due to a conduction disorder most likely brought on by his longstanding hypertension with poor control.

Regarding PTSD, the examiner determined that this would not have caused or contributed to atrial fibrillation.  Chronic alcohol abuse has been known to be a risk factor; however, this Veteran stopped drinking on his own without the need for rehabilitation in 2005, which was 4 years before the atrial fibrillation developed, and he had no evidence of any heart issues in 2005.  

Moreover, the examiner noted that there was no literature of which he was aware that showed a relationship between PTSD causing or permanently aggravating atrial fibrillation.  Therefore, he found it less likely as not that the chronic atrial fibrillation was caused or permanently aggravated beyond normal progression by service connected PTSD.  As previously noted, while diabetes was normally a risk factor, the Veteran's diabetes was well managed with diet and exercise with no evidence of progression of the disease especially at the time the atrial fibrillation was found.  Therefore, he found it less likely as not that the atrial fibrillation had been caused or permanently aggravation beyond the normal progression by the service-connected type 2 diabetes.  

During the Veteran's March 2016 Board hearing, he testified that he suffered from a heart condition-namely, atrial fibrillation.  He expressed his belief that this condition was related to his service-connected PTSD, in that he experienced an irregular heartbeat whenever he was under stress or anxiety.  He indicated that his heart started pounding during a PTSD attack.  However, none of his doctors has related his condition to his PTSD any medication taken for PTSD.  

With respect to the claim for service connection for heart disorder as presumptively due to herbicide exposure as indicated above, the Veteran does not have ischemic heart disease, and the Veteran's heart disorder, to include atrial fibrillation, is not among the disabilities recognized by VA as associated with herbicide exposure. See 38 C.F.R. § 3.309(e). The Board acknowledges the earlier findings suggestive of congestive heart failure; however, as noted by the VA examiner, these symptoms had resolved and there was no further indication of diagnosis of ischemic heart disease.  Therefore, service connection as presumed as due to exposure to in-service herbicide exposure is not warranted.  

However, the regulations governing presumptive service connection for herbicide exposure do not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (1994). As such, the Board will adjudicate the claims on a theory of direct entitlement to service connection.

Here, there is no evidence that the claimed heart disability had its onset in service or is otherwise related to service. The service treatment records are silent for related complaints or diagnoses, and in fact, the heart was noted to be normal at discharge. 

The Veteran has not alleged that he had symptoms of a heart disorder in service or until many years thereafter, and the first evidence of any of the claimed disorders is in 2011.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and any medical complaints or documentation of a claimed disability is a factor that weighs against a claim for service connection). See 38 C.F.R. § 3.303(b). 

Moreover, none of the VA or private treatment records report indicates a relationship between the Veteran's current heart disorder and service, and the Veteran has not expressed any relationship to service outside of herbicide exposure.

Thus, based upon the cumulative record, we conclude that the claimed heart disorder, diagnosed as atrial fibrillation, first manifest years post service and that there is no nexus to service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309.

In regard to the claim for service connection for service connection on a secondary basis as due to or aggravated by service-connected PTSD or diabetes mellitus, none of the probative evidence supports a finding of a relationship between the Veteran's claimed heart disorder and his service-connected disabilities. The only pertinent medical opinion of record is that of the 2012 VA examiner, who had a thorough review of all pertinent evidence and stated there is no evidence of a connection between the service-connected diabetes mellitus and PTSD and the claimed heart disorder. The only credible, probative opinion of record weighs against the claim on a secondary basis, and neither the Veteran nor his representative has presented or identified any medical opinion or other competent evidence that, in fact, supports the Veteran's claim. 

To the extent that the Veteran advances his own interpretation of his medical condition indicating that his heart disorder is related to his in-service herbicide exposure or service-connected disability, the Board again acknowledges that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology.  See Davidson, 581 F.3d at 1316. In any event, the probative value of the Veteran's general assertions in this regard is outweighed by the probative value of the specific, reasoned opinion of the physician who performed the September 2012 VA examination.

For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for heart disorder, to include atrial fibrillation, and to include as secondary to service-connected disability or in-service . The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan, 573 F.3d at 1287.


IV.  Earlier Effective Date

In this case, the Veteran is seeking entitlement to an effective date earlier than July 1, 2009 for the award of a 70 percent rating for PTSD, a TDIU, and DEA.  

A. PTSD

The Veteran contends that he is entitled to an earlier effective date for the award of a 70 percent rating for his PTSD prior to July 1, 2009.  The Board notes that the Veteran was assigned a 100 percent rating for PTSD for the period from February 23, 2009 through July 1, 2009 due to hospitalization for PTSD.  A 70 percent rating was assigned subsequent to this hospitalization.  Accordingly, the Board will address the period prior to February 23, 2009.

The issue on appeal may be addressed in two separate manners.  The issues may be viewed as a staged rating or as an earlier effective date issue.  However, the results are the same.  The Board must review dates of claim, whether any decisions became final and dates showing increase in disability.  Ultimately, rating evaluations are based upon facts found.  See 38 U.S.C.A. § 5110(a)(b).  When determining if there is a claim, the Board must consider the possibility of formal claims, informal claims and claims as defined under 38 C.F.R. § 3.157.

The effective date of an award of increased compensation to a Veteran shall be the earliest date as of which it is ascertainable that an increase in disability has occurred, if application is received within one year of such date.  Otherwise, the effective date is the date of receipt of claim.  38 U.S.C.A. § 5110(b)(2); 3.400(o)(2).

Under 38 U.S.C.A. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  See also 38 C.F.R. § 3.151(a).  A claim is defined 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).

An informal claim is any communication indicating an intent to apply for one or more benefits, and must identify the benefit sought.  38 C.F.R. § 3.155(a).

The Veteran's PTSD with alcohol abuse and dependency is rated under 38 C.F.R. § § 4.130, Diagnostic Code 9411. This Diagnostic Code provides that PTSD should be rated under the General Rating Formula for evaluating psychiatric disabilities other than eating disorders.

Under the general formula, a 30 percent rating is warranted for occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as a depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events).

A 50 percent rating is assigned 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 assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. 

A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name.

The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436   (2002).

In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013) the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that          "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas."

Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the 'psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.' There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability.  See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995).  However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a).

By way of history, the Veteran's claim for service connection for PTSD was initially denied in a February 1997 rating decision.  The Veteran filed a claim to reopen in August 2005.  The RO denied the Veteran's application to reopen the claim in a January 2006 rating decision.  The Veteran filed another application to reopen in October 2006.  The RO granted service connection for PTSD with alcohol abuse/dependence in a May 2007 rating decision.  A 30 percent rating was assigned, effective the August 30, 2005 date of claim.

In November 2007, the Veteran submitted a notice of disagreement regarding the 30 percent rating assigned in the May 2007 rating decision.  In September 2008, the RO issued a statement of the case continuing the assigned 30 percent rating for the disability. The Veteran perfected his appeal in October 2008.  During the course of his appeal, in an August 2009 rating decision the RO granted a 50 percent rating for the disability, effective February 13, 2009-the date of a VA treatment report reflecting worsening disability.  

In October 2009 written statement, the Veteran expressed his satisfaction with the assignment of a 50 percent rating and withdrew his appeal.  However, approximately one month later in November 2009, the Veteran expressed that he felt that the increase was not sufficient, and he was not satisfied with the 50 percent rating.  He submitted new evidence from the Vet Center shortly thereafter.

In a July 2010 rating decision, the RO assigned a temporary 100 percent rating for PTSD with alcohol abuse/dependence due to hospitalization over 21 days from February 23, 2009.  A 70 percent rating was assigned, effective July 1, 2009.  

Given that the Veteran indicated that he no longer wished to withdraw his appeal, and that he submitted additional evidence upon which the RO acted and granted additional benefits, the Veteran's withdraw of his November 2007 notice of disagreement is not accepted.  Accordingly, the matter of entitlement to an increased initial rating prior to February 23, 2009 is still effectively on appeal, and the Board will discuss the propriety of the ratings assigned from August 30, 2005.  

The pertinent evidence includes VA outpatient records discussing the Veteran's PTSD symptoms and treatment.  

In November 2005, the Veteran was seen on consultation relating to stress evaluation and treatment.  He reported ongoing periods of sleep disorder with nightmares.  He indicated that he talked in his sleep and had fallen out of bed.  He stated that he had difficulty in maintaining relationships and angered easily.  He also endorsed confusion and difficulty with concentration.  He noted periods of flashbacks.  He noted that he lived with his brother and received support from his daughter.  He worked as a crossing guard part time, and his prior employment was for 16 years at a senior citizens organization.  He reportedly lost this job due to downsizing.  

On mental status examination, he was alert and oriented with appropriate grooming.  He was cooperative and reasonable with normal speech and anxious mood.  There was no indication of a perceptual disturbance with no unusual thought content and normal and coherent thought process.  Insight and judgment were described as good and memory was intact.  A diagnosis of adjustment disorder, mixed anxiety/depression was indicated, and a GAF score of 60 was assigned.  

VA treatment records dated in 2006 reflect his participation in group therapy.

An August 2006 Vet Center individual therapy initial visit report notes that the Veteran endorsed nightmares, poor concentration, irritability, anger, depression, unwanted thoughts, poor memory, and guilt.  On mental status examination, the Veteran presented as appropriately dressed and groomed, attentive, alert, oriented, and cooperative.  Motor activity was within normal limits without noticeable agitation.  Speech was within normal limits.  Affect was stable and full in range, of average intensity, and appropriate to content.  His mood was generally euthymic, but he became tearful when noting the poor reception he received upon return from Vietnam.  He voiced no suicidal or homicidal ideas.  Cognition, insight, and judgment appeared good.  The Veteran's major themes included concern about decrease in short term memory, increasing symptoms since retirement in 2003, including avoidance of war films and poor sleep marked by restlessness, and sadness about being received poorly upon return to the country after Vietnam.  The Veteran speculated that the worsening PTSD symptoms at that time might have been due to cessation of employment.  He reported that he enjoyed part-time employment as a children's schools crossing guard, and the income helped support his college-enrolled daughter.  

On VA treatment in November 2006, the Veteran endorsed difficulties with anger.  He displayed anger related to the war in Iraq, and discussed insomnia and flashbacks of his Vietnam experiences.  He admitted to feeling down "every now and then."  He reported that his energy was okay, concentration was impaired, and memory was also a problem.  He had no real zest for life, lacked vitality and had decreased motivation and enjoyment.  He reported that he was close with his daughter and attended church.  Mental status examination revealed that the Veteran was alert, oriented, well-groomed, and cooperative.  His speech was normal, affect was full range, and mood was "down."  No suicidal or homicidal ideation, delusions, or hallucinations were endorsed.  Insight and judgment were noted to be good.  The examiner diagnosed PTSD and mood disorder not otherwise specified, and assigned a GAF score of 65.  

In December 2006, the Veteran endorsed anger, memory problems, feeling down, low energy, and sleep difficulties.  The examiner diagnosed PTSD and mood disorder and assigned a GAF score of 60.  

On VA treatment in 2007, the Veteran reported that he was getting some sleep but frequently woke up.  He had interrupted sleep through the night for a total of 5 hours of sleep per night.  He avoided watching television news coverage of Iraq.  He continued to experience episodic anger and "flying off the handle" during discussions with other people.  He tried to avoid "my way is the right way" type of thinking.  He indicated that his veterans support groups were helpful and he felt a difference when he did not attend a meeting.  He reported that he worked part time as a crossing guard, which he enjoyed.

Objectively, the Veteran was alert and oriented with normal speech.  Affect was full range, and thought processes were linear.  There were no acute disturbances of insight or judgment.  The examiner diagnosed PTSD and mood disorder, and assigned a GAF score of 65.  

A December 2007 Vet Center PTSD group report notes that the Veteran shared that he had stressful holiday.  Many family members were at his house and he spent all of his time in the bedroom.  He had chronic panic attacks.  

A March 2008 statement from a Vet Center social worker notes that the Veteran's thought processes were grossly impaired, he had no friends, and had difficulty communicating his own twin brother, who did not serve in Vietnam.  He had panic attacks on a daily basis and was sharing more of his problems with his therapy group.

An April 2007 report from the Vet Center indicates that that the Veteran had been seen there by his therapist since September 2006 and participated in a weekly PTSD group.  He had chronic sleep disturbances, feeling of irritability, and was unable to be around others without getting anxious and feeling panicky.  He thought of his Vietnam experiences on a regular basis and had dreams about his friend that was killed in the war.  The social worker noted that the Veteran left the home for appointment and tried to go fishing when he could, but otherwise he stayed at home, had no friends, and had chronic problems trying to develop relationships.

On VA examination in May 2007, the Veteran reported that he lived with his brother, whom he had lived with on and off for the past 30 years.  He had never been married but had one adult daughter.  He had contact with his sister once every three weeks.  He currently worked as a crossing guard for a total of 13 hours each week.  He generally worked 5 days a week in the mornings and afternoons.  He was previously employed as a youth programmer and director of a senior citizen employment and training.  He retired from his position in 2004.  He reportedly considered himself a functional alcohol, though he ceased all use of intoxicants 3 years prior when he was diagnosed with kidney cancer.

He initiated mental health care at the VA medical center in Milwaukee approximately 1.5 years ago.  He participated in a PTSD 8-week group therapy treatment program.  He then sought treatment a Vet Center, and attended a group session once a week.  He also consulted with a psychiatrist, who diagnosed him with PTSD and mood disorder.  He also used psychotropic medications for treatment.  

The Veteran reported that he got little sleep at night and awoke frequently during the night.  He left for work at 6:30 a.m. and when he returned home at 8:00 a.m., he often slept for several hours.  In between his work hours and on weekends, the Veteran indicated that he did a little yard work.  He occasionally took short fishing trips, sometimes accompanied by his brother-though he preferred to be alone.  He cooked and did his own grocery buying.  He had weekly contact with a female acquaintance.  He belonged to the American Legion but seldom attended events.  He stated that he did not need to be around a lot of people.      

He reported significant problems with anger control, intrusive thoughts of his Vietnam experiences, and exaggerated startle response.  He stated that he had a tendency to "go off" on others, and he was scared of what he might do.  He also experienced nightmares about his past combat experiences.  

Objectively, the Veteran presented as casually dressed with good personal hygiene. His thought processes were logical, coherent, and organized.  No evidence of florid psychosis was noted.  He did not endorse current suicidal or homicidal ideation.  He expressed unhappiness about why it had taken so long for him to access service to treat his PTSD.  He demonstrated no evidence of loosening of associations, delusions or hallucinations.  

The Veteran demonstrated an unremarkable mental status examination upon formal testing, with the exception of a slight decrease in his short-term recall.  He also demonstrated excellent abstract thinking, capacity to perceive the similarities between two concepts, social judgment, and a general fund of information.  

The examiner diagnosed PTSD and alcohol abuse/dependence, currently in sustained remission.  A GAF score of 60 was assigned.  The examiner expressed that the Veteran's PTSD had produced mild impairment in his social and vocational functioning.  

A June 2007 VA mental health medication management note indicates that the Veteran's endorsed insomnia, but that his mood had improved with medication.  Diagnoses of PTSD and mood disorder at a GAF score of 65 were assigned.

Continued Vet Center treatment records dated in 2007 reflect difficulties with anger, anxiety, chronic sleep disturbances, and memory problems.  

On Vet Center treatment in February 2008, the Veteran described an episode of anger and rage, and indicated that his family stayed away from him during that time.  

An April 2008 VA examination report reflects the Veteran's continued part-time employment as a crossing guard for an elementary school.  He worked about 2.5 hours every day.  He expressed that he was very frustrated with this job because he found that the children did not listen to him, there had been an incident with potential for violence to the Veteran, and the drivers drove too fast where he was stationed.  He reported that he expected to stop this job in June 2008.  He lived with his twin brother.  He had an adult daughter and a girlfriend he had known for about 10 years.  He saw her 3 to 4 times per week but stayed overnight only once a week.  They generally spent their time together watching television.  He daughter visited him almost every day after work.  He tried to help her by doing her laundry and repairing her car.  He also had a sister whom he saw regularly.  

Subjectively, the Veteran's complaints included anger management and flashbacks.  He noted that he was not getting rest at night.  He described periods of depression that lasted up to 2 to 3 hours.  At such times, he felt sad, tearful, and he sometimes had thoughts of hopelessness and helplessness, and low energy and motivation.  Occasionally he had suicidal thoughts but no intent or plan.  He had difficulty getting asleep and awoke frequently during the night.  He dozed during the day.  He stated that sometimes he woke up "angry at the world" and feeling like hurting someone, but he feared losing control.  Therefore, he withdrew to his bedroom, although he did maintain his work schedule.  Most of the time he was depressed and isolated himself in his bedroom.

The Veteran reported nightmares of Vietnam combat at least once a week and intrusive distressing recollections of Vietnam once or twice a week.  Flashbacks were reported about twice a month and lasted about 2 minutes.  

The Veteran avoided thoughts, feelings, and conversations about, Vietnam even with Vietnam veterans, except in treatment.  He avoided reminders such as news on Iraq in the media, tall grass, crowds, Fourth of July celebrations, and veterans talking about Vietnam. When the latter occurred he left.  He indicated he has lots of friends and his brother had arranged a weekly Sunday brunch with 5 to 8 friends that they both share.  He felt uncomfortable with this and stayed at the brunch for only short periods of time; once they started to eat he withdrew to his bedroom and stayed there most of the time. He may wander out for 10 minutes and then went back to his room. He saw his girlfriend informally 3 to 4 times a week. He preferred to withdraw from other people. 

Hyper-startle response was indicated as he feels jumpy to cars backfiring and fireworks.  Hypervigilance was also indicated as he believed that he was "on guard" 30 to 40 percent of the time. He was very uncomfortable with anyone close behind him and will cross the street to change that situation. When in a restaurant he sat facing the door and watched the people come and go. At night he double checked the locks in the house if he wakes up during the night and he had an alarm system. He also has an unloaded gun in his bedroom closet.

The Veteran described muscle tension in his upper body and arms.  He described periods of anxiety about once a week that had been precipitated by crowds.  Paranoid and homicidal ideations were denied.  He denied physical aggressiveness, but discussed banging his fist into the wall when he was alone.  He was verbally aggressive with his girlfriend by being loud, critical, and calling her actions "stupid."  This caused conflict between them.  He believed that he had a short temper and feared that he might hurt someone.  He reported that this feeling had been more intense in the past year.  

He spent his time doing his job, sharing cleaning and laundry, and occasionally cooking with his brother and going lawn care and snow removal.  He also attended VA appointments and Sunday brunch.  He liked to read books, watch television, listen to music, and use the computer.  He attended church services about 3 times per month.  Once a year he travelled to California to see a friend who was a veteran.  He had contact with his sister and daughter.

Objectively, the Veteran was cooperative, presenting with good grooming and casual but clean and neat clothing.  Eye contact was good and facial expression was animated.  Motor behavior showed no abnormal movements.  Speech rate and quantity were within normal limits.  Affect was appropriate and range of affect was constricted to broad.  He was alert and oriented.  Stream of thought was coherent, relevant, logical, and goal-oriented.  Remote, recent, and immediate memory were adequate.  He reported some difficulty with short-term memory.  Concentration problems were reported primarily in a group of people.  Formal social judgment was impaired.  Abstract thinking with proverbs was poor.  Insight appeared good.  

The examiner diagnosed PTSD, depressive disorder not otherwise specified, and alcohol dependence, in full sustained remission.  A GAF score of 55 was assigned.  

On VA treatment in June 2008, the Veteran's mood was described as low key and smiling, with congruent affect.  He denied hopelessness, but felt that he just "got by."  He worried about his mounting medical problems.  Diagnoses of PTSD and dysthymic disorder and a GAF score of 65 were assigned.  

A February 2009 VA mental health telephone report indicates that the Veteran stated that he could not sleep, continued to have flashbacks, and was worried about his health issues.  He also stated that he had homicidal ideation.  When asked to clarify, he stated that a few days prior he saw a "shadow" and when he turned around it was a young boy running for a bus.  He stated that, if he had a gun, he could have shot him.  He was asked if he had any thoughts of harming someone, and he stated that he did not.  

Another February 2009 report indicates that the Veteran was drinking wine again and he was worried that, if he did not seek treatment, his drinking problems would escalate to past levels.  He noted that he had been employed as a crossing guard, but due to inability to concentrate on the job, he quit in February 2009.  

In an April 2009 statement, a social worker from the Vet Center indicates that the Veteran continued to attend weekly group therapy session.  He noted that, unlike some war veterans, the Veteran had a tendency to keep his anger, rage, and thought processes to himself, making it more difficulty for an evaluator to assess the severity of his symptoms unless his symptoms are triggered in the evaluation.  He shared in group about how he felt that he was in persistent danger of hurting himself and believed that his life was lost in the war.  His memory is of a chronic nature and his thought processes were grossly impaired.  

A May 2009 report from the Wheaton Franciscan Medical Group indicates that the Veteran presented for treatment of PTSD in October 2008.  It was noted that he had some classic symptoms of PTSD, including flashback and nightmares.  He became very intensely distressed psychologically when in large public areas where he did not known the people around him.  He had difficulty with hypervigilance and noise sensitivity.  He had restricted range of affect and did have a difficult time maintaining relationships with members of the opposite sex.  It was indicated that he was given medication to aid with sleep and his symptoms of anxiety and depression.  The treating psychiatrist noted that, due to the chronic nature of the Veteran's PTSD, it seemed that he was unlikely to perform at a high level of functioning.  It was felt that he had much difficulty with establishing and maintaining social relationships, as well as difficulty with his memory with some impairment in his motivation as well as his mood. 

A June 2009 VA discharge summary indicates that the Veteran sought treatment for PTSD and participated in several group therapy sessions.  It was noted that, at first, the Veteran tended to downplay his past alcohol use and problem, but he later became more honest about his past struggles.  He also worked on his issue of isolating and reported family and friends told him he was not so grouchy anymore.  He also worked on getting a better relationship with his daughter.  He reported that communication had improved.  

Diagnoses of alcohol dependency and PTSD and a GAF score of 55 at the time of admission, and 65 at discharge, were assigned
  
During the Veteran's Board hearing, he and his attorney expressed that the effective date of the 50 percent rating for PTSD should have been August 30, 2005, rather than February 13, 2009.  They also argue that a 70 percent rating was warranted at that time, and his employment at that time was marginal.  He noted that he was only working as a crossing guard 4 hours a day for about a year and a half before checking himself into a domiciliary for psychiatric treatment.  He described anger problems, and indicated that he was at a "crisis point" by the time he sought VA hospitalization in February 2009.  He expressed that he felt that he was crisis state for about a year and half prior to domiciliary treatment.  He reported that he could not get along with the kids for whom he served as a crossing guard.  He expressed that he was afraid he would harm a kid when they were not respectful to him.  He noted that he worked previously at an employment and training program for senior citizens.  He expressed that his position there was tenuous at best by the time he left the program due to lack of funding.  He reported that he experienced anger problems while on the job and had difficulty sleeping and with concentration during that time frame.  He indicated that after he left that job, he was not looking for another until the boredom and anxiety set in.    

Based on the foregoing, the Board believes that a 50 percent rating for the Veteran's PTSD is warranted for both the periods prior to and from February 13, 2009.  The aforementioned evidence reflects that the disability was manifested by sleep impairment, depression, social withdrawal, disturbances in motivation and mood, panic attacks, anxiety, anger, intrusive recollections of Vietnam experiences, and hypervigilance.  Given that these complaints have remained primarily the same throughout the entire appeal period, the Board finds that the Veteran is entitled to a 50 percent rating for the period prior to February 13, 2009.  In reaching this determination, we note that the evidence has varied.  However, during this initial period, there was evidence of sleep impairment, depression, some social isolation, irritability and low motivation.

However, at no point during the period of the appeal, is the service-connected PTSD shown to have met the criteria for the higher rating of 70 percent.  As noted, a 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish effective relationships

Significantly, the probative evidence does not show such symptoms as obsessional rituals; suicidal ideation; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; spatial disorientation; impaired impulse control; or neglect of personal appearance and hygiene that would require the assignment of a 70 percent rating.

To the extent that the Veteran experienced social isolation and irritability with his family members and others in his service as a crossing guard, the Veteran had a girlfriend during this time period, lived with his brother, saw his daughter and sister regularly, and reported some social activity.  Therefore, the Board finds that the Veteran's PTSD was productive of social impairment such that he had difficulty in establishing and maintaining effective relationships, consistent with a 50 percent rating.

In sum, the Board finds that the evidence of record is not indicative of occupational impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood.  Moreover, the VA examiners also determined that the Veteran's psychiatric symptoms were only of mild to moderate severity, consistent with the 50 percent rating assigned.  

The Board acknowledges the findings of the Vet Center social worker noting grossly impaired thought process and daily panic attacks as well as reports documenting the Veteran's thoughts of harming others.  However, these findings, without more, do not support a rating in excess of 50 percent.  While the Veteran had thoughts of harming others there is no indication that the Veteran ever acted on these thoughts or had impaired impulse control with episodes of violence.  Further, while the Veteran experienced daily panic attacks, the ability to function independently during this period is not shown.  Finally, grossly impaired thought process is simply not otherwise documented in VA or Vet Center treatment records or on VA examinations during this period; rather, these records indicate that the Veteran was able to communicate with others, with normal speech and coherent and logical thought process.

The Board further notes that the GAF scores of assigned during this time period, ranging from 55 to 65, alone, do not provide a basis for assigning a rating in excess of 50 percent for PTSD.  

According to DSM-V, GAF score ranging from 51 to 60 reflects moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  A GAF from 61 to 70 is defined as some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.  Hence, these scores are consistent with no more than 50 percent rating reflecting mild to moderate symptomatology.  

As to consideration of referral for an extraschedular rating for this period, such consideration requires a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The first question is whether the schedular rating adequately contemplates the Veteran's disability picture.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms.  If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director, Compensation Service to determine whether an extraschedular rating is warranted. 

The discussion above reflects that the symptomatology associated with the Veteran's psychiatric disability, including anxiety, irritability, panic attacks, depression, etc., is fully contemplated by the applicable rating criteria.  The symptomatology reported by the Veteran and shown on examination is contemplated by the rating criteria used to assign disability evaluations, and there is no characteristic or manifestations shown that is outside the purview of the applicable rating criteria or is so exceptional as to render the criteria in applicable.  All potentially relevant rating codes have been considered and evaluated.  Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is therefore not required.  In any event, the Veteran did not claim, and the evidence does not reflect, that there had been marked interference with employment, frequent hospitalization, or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards during the period on appeal.  The evidence of record certainly shows that the Veteran's disability has impacted his ability to work.  However, the level of interference shown is contemplated by the disability evaluation already assigned to the Veteran's disorder.  Therefore, referral for consideration of an extraschedular rating for the disability on appeal is not warranted.  38 C.F.R. § 3.321(b)(1).  

Additionally, the Veteran has not alleged or indicated 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. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Nonetheless, the Board has fully considered the Veteran's additional service-connected disabilities in concluding that referral for consideration of an extraschedular rating is not warranted.

Here, the Veteran already had a combined 50 and 60 percent evaluation for his service-connected disabilities for the period prior to the assignment of a 100 percent rating based upon hospitalization effective February 23, 2009.  This evaluation fully contemplates the combined impact and referral for extraschedular consideration is not warranted.

For the foregoing reasons, the Board finds that a uniform 50 percent rating, but no higher, for PTSD is warranted prior to February 23, 2009.  In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

B.  TDIU

The grant of a TDIU is an award of increased disability compensation for purposes of assigning an effective date.  Dalton v. Nicholson, 21 Vet. App. 23 (2007); Wood v. Derwinski, 1 Vet. App. 367, 369 (1991). The assignment of effective dates for increased ratings is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400.

As noted above, unless specifically provided otherwise, the effective date of an award based on a claim for compensation is to be fixed in accordance with the facts found, but not earlier than the date the claim was received. 38 U.S.C.A. § 5110(a). If a claim for disability compensation is received within one year of separation from service, the effective date of an award is the day following separation. 38 U.S.C.A. § 5110(b)(1). The effective date of an award of increased compensation 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).

A claim for TDIU is deemed to have been submitted as part of any claim for an increased rating when evidence of unemployability is submitted at the same time as the claim and the Veteran seeks the highest rating possible. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009).

A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  See 38 C.F.R. § 4.16(a) (2015).  Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 4.16, 4.19 (2015); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).

In this case, the Veteran's formal claim for TDIU was received on March 13, 2009. The effective date for the grant of TDIU was July 1, 2009, which was the date the Veteran's service-connected disabilities were reduced to a combined 70 percent evaluation.  Previously, from February 23, 2009 forward, the Veteran's service-connected disabilities were rated at 100 percent on the basis of domiciliary treatment for PTSD.

In this case, the Veteran has essentially expressed that he was entitled to a 70 percent rating for PTSD prior to July 1, 2009, thereby meeting the criteria for a TDIU at an earlier date. During the Board hearing, the Veteran contends that he should be found unemployable from August 30, 2005, the date he submitted his claim for PTSD.  He argued that, while he was employed as a crossing guard at that time, this employment was marginal, and he was not capable of other employment during this period. 

The Board notes that prior to February 23, 2009, the Veteran was service-connected for posttraumatic stress disorder (PTSD) (50 percent-as discussed above) and diabetes mellitus (10 percent from March 23, 2008).  Prior to February 23, 2009, his combined rating of 50 and 60 percent does not satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for a TDIU.

However, even if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service- connected disability.  38 C.F.R. § 4.16(b).  See also Fanning v. Brown, 4 Vet. App. 225 (1993).  Thus, a discussion of whether the Veteran was unemployable during this period is still warranted.

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 and keep employment.  The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment.  In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice- connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

Here, the Veteran alleges that he was unemployable due to occupational impairment stemming from his service-connected PTSD.  He indicates that, while he was employed part-time as a crossing guard during this period, this employment was marginal and he encountered significant difficulties interacting with others while he was working.  

The aforementioned medical evidence concerning the Veteran's PTSD and employment during this period reflect that the Veteran was let go from his job in approximately 2003 due to downsizing/lack of funding.  

Vet Center records dated in 2006 reflect that the Veteran speculated that his worsening symptoms were due to lack of employment since retiring, and that he enjoyed his job as a crossing guard.  A 2007 VA treatment also indicates the Veteran's report that he enjoyed the job.  By 2008, he reported that he was having difficulties with interactions with others on the job and hoped to leave the job soon.  He quit shortly prior to his hospitalization in February 2009.

In sum, the evidence of record from this time period reflected that the Veteran's PTSD was productive of occupational impairment due to symptoms such as anxiety, anger, panic attacks, and difficulties with concentration.  

Although it is unclear whether his employment during this period constituted more than marginal employment, the preponderance of the competent evidence of record does not demonstrate that the Veteran's service-connected disabilities alone were to such a severity to preclude substantially gainful employment.

Rather, the record reflects that the Veteran retired from his full-time job due to downsizing, and that he initially enjoyed working part-time as a crossing guard, which provided some supplemental income to him.  While had difficulties interacting with others on the job, he still maintained his position until he left shortly prior to hospitalization.  The record also suggests that the Veteran sought part-time employment after retirement because he felt that his psychiatric symptoms had worsened since he stopped working.

Regarding the Veteran's other service-connected disability, the treatment records do not show that his diabetes mellitus limited his employability during this time period, and the Veteran has not indicated such.

In the absence of evidence that the Veteran's service-connected disabilities alone render him unemployable, referral of the case to the Director of Compensation Service for consideration of a TDIU rating on an extraschedular basis prior to July 1, 2009, is not warranted.  As the preponderance of the evidence is against the claim for an earlier effective date for the award of a TDIU, the benefit-of-the doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b).

C.  DEA

The Veteran asserts that he is entitled to an effective date prior to July 1, 2009 for basic eligibility for DEA benefits, given that he should have been eligible for a TDIU prior to this date given the severity of his service-connected PTSD.  For the purposes of DEA benefits, basic eligibility exists if a veteran were discharged from service under conditions other than dishonorable, and if he has a permanent and total service-connected disability. 38 U.S.C.A. § 3501; 38 C.F.R. §§ 3.807, 21.3021(p). There are other avenues through which basic eligibility may be granted; however, they involve factors not applicable here, e.g., the death of a veteran or if a veteran is currently on active duty. Id.  

As discussed above, the Board found that an effective date for the award of entitlement to a TDIU earlier than July 1, 2009, is not warranted. Since eligibility for DEA benefits is predicated on a finding of permanent and total disability in this case, the effective date of such eligibility cannot precede the date permanent and total disability was awarded. Accordingly, an effective date earlier than July 1, 2009, is denied. The law is dispositive of the issue.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

The application to reopen the claim for service connection for rheumatoid arthritis is denied.

Entitlement to service connection for tinnitus is denied.

Entitlement to service connection for heart disorder, to include atrial fibrillation, and to include as secondary to service connected disability or exposure to herbicides, is denied.

A 50 percent rating for PTSD with alcohol abuse and dependency, prior to February 13, 2009 is granted, subject to the controlling regulations applicable to the payment of monetary benefits.

A 70 percent disability evaluation for PTSD prior to February 13, 2009 is denied.  

Entitlement to an effective date earlier than July 1, 2009 for the award of a TDIU is denied.

Entitlement to an effective date earlier than July 1, 2009 for the award of DEA is denied.  



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs