Citation Nr: 1750154 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 13-05 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for cellulitis, right foot, to include whether new and material evidence has been received to reopen a previously denied claim. 2. Entitlement to service connection for hypertension, to include as a result of Agent Orange exposure. 3. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with alcohol abuse prior to May 10, 2013, and a rating in excess of 70 percent prior to March 31, 2014. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to March 31, 2014. 5. Entitlement to a TDIU since March 31, 2014. REPRESENTATION Appellant represented by: Marcia L. Moellring, Attorney ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from January 1967 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD with an initial 30 percent rating effective July 22, 2009. A November 2012 rating decision granted a 50 percent rating for PTSD effective July 22, 2009. A May 2014 rating decision granted a 70 percent rating for PTSD effective from May 10, 2013. In a June 2016 rating decision, the RO granted a 100 percent disability rating for PTSD effective from March 31, 2014. The June 2016 rating decision also states that "this makes your claim for TDIU a moot issue." In January 2017, the Veteran withdrew his prior request for a Board hearing. In February 2017, the Veteran's attorney filed a VA Form 21-0958, Notice of Disagreement (NOD), disagreeing with the effective date assigned in the June 2016 rating decision for the 100 percent rating for PTSD and the finding as to the TDIU issue. As both issues were already on appeal, a second NOD was not required, and the issues need not be remanded for issuance of a statement of the case (SOC). Likewise, no further action is needed as to the earlier effective date issue, as argued by the Veteran's attorney. Generally, a claim for an earlier effective date for the award of a particular disability rating is a distinct issue appealable to the Board. See, e.g., Hazan v. Gober, 10 Vet. App. 511 (1997). Here, however, the Veteran's PTSD and TDIU appeals ultimately arise from the May 2010 rating decision granting service connection for the disability. The more recent rating decision in June 2016, which increased the rating of PTSD from 70 percent to 100 percent effective from March 31, 2014, simply granted a staged rating for the disability. The appeal of the effective date for the 100 percent rating is subsumed by the pending appeal of the claim for an increased initial disability rating for PTSD. That is so because in looking at the record to determine if higher ratings are warranted, the Board will necessarily be adjudicating the earlier effective date issue. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Fenderson v. West, 12 Vet App 119, 125-27 (1999). As such, there is no pending appeal in this case for an earlier effective date for the award of a 100 percent rating for PTSD, and remand for an SOC is not needed pursuant to 38 C.F.R. § 19.9(c). In September 2017, the Veteran's representative waived initial RO consideration of additional evidence added to the claims file. See 38 C.F.R. § 20.1304(c). The issues of service connection for a skin condition of the right foot, an increased rating for PTSD with alcohol abuse prior to March 31, 2014 and a TDIU prior to March 31, 2014, are decided herein. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. A current skin condition of the right foot, diagnosed as eczema and dermatitis, is likely related to the Veteran's treatment for a skin condition of the right foot during service. 2. Throughout the appeal period prior to March 31, 2014, the Veteran's PTSD with alcohol abuse resulted in an occupational and social impairment with deficiencies in most areas. 3. From July 22, 2009, until March 31, 2014, the Veteran's PTSD with alcohol abuse disability met the schedular requirements for award of a TDIU and is shown to have prevented him from obtaining and maintaining all forms of substantially gainful employment consistent with his educational and occupational background. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a skin condition of the right foot, diagnosed as eczema and dermatitis, are met. 38 U.S.C.A. §§ 1101, 1110, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). 2. The criteria for the assignment of an initial disability rating of 70 percent prior to May 10, 2013, for PTSD with alcohol abuse are met, but not higher for any time period prior to March 31, 2014. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.130 (2016). 3. The criteria for the assignment of a TDIU are met from July 22, 2009, until March 31, 2014. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. Right Foot The Veteran was treated for cellulitis of the right foot during service, and he maintains that the condition has recurred on an intermittent basis since then. This claim was previously denied by the RO, so the Veteran initially seeks to reopen the prior claim. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). A. Reopening A claimant is entitled to notice of any decision by VA affecting the payment of benefits or the granting of relief. 38 U.S.C.A. § 5104. Generally, a VA decision becomes final if a notice of disagreement (NOD) is not filed. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.1100, 0.1103. It is, however, incorrect to assert that a rating decision is necessarily final because the Veteran failed to file a NOD. See Buie v. Shinseki, 24 Vet. App. 242, 252 (2011). To the contrary, if new and material evidence is received during an applicable appellate period following a RO decision, the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156 (b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Moreover, except as otherwise provided, if at any time following issuance of a decision VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided a prior claim, VA will reconsider the claim. See 38 C.F.R. §§ 3.156 (c), 20.1000(b). To reopen and review a claim that has been previously denied, new and material evidence must be submitted by or on behalf of a claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The question of whether to reopen a claim should be considered under the standard of 38 C.F.R. § 3.159(c)(4)(iii), consistent with McLendon v. Nicholson, 20 Vet. App. 79 (2006), for determining whether a VA examination is necessary. See Shade v. Shinseki, 24 Vet. App. 110, 118-19, 123 (2010). If the McLendon standard is met, the claim should be reopened. See id. Here, the Veteran filed an original claim of service connection for cellulitis, right foot, in June 2004. He clarified in a July 2004 statement that he was claiming the disability as directly incurred during service and not due to Agent Orange exposure. The RO denied the claim in a January 2005 rating decision. The RO found that: "Although the evidence shows you were treated in service in 1968 for cellulitis of the right foot, this condition was treated and resolved. There is no evidence to show chronic cellulitis from the time of your in service treatment to the present time." In March 2005, the Veteran filed a statement requesting service connection for a different disability. He also mentioned cellulitis. Two months later, in May 2005, additional VA medical records were obtained. The RO then issued a rating decision in September 2005, which "confirmed and continued" its prior denial. The RO informed the Veteran that there was no "additional information to show your current cellulitis of the right foot is related to the cellulitis you had in service." The Veteran then filed an informal claim of service connection for cellulitis of the right foot in March 2006. Copies of his service treatment records (STRs) were submitted at that time. The RO issued a rating decision in February 2007 denying service connection for cellulitis of the right foot on the basis that the evidence was not new and material. The RO reissued this rating decision in April 2007. Based on this sequence, the Veteran's prior claims became final. He did not file an NOD after either rating decision denying the claim. New evidence was received in May 2005, after which the RO reconsidered the claim consistent with § 3.156(b). Additional STRs were received in March 2006, but these were exact duplicates of STRs already of record. Thus, reconsideration under § 3.156(c) is not warranted. In short, the prior claims became final because the Veteran did not appeal the determinations, the new and material evidence received prior to expiration of the appeal period was considered, and no further official service department records have been obtained. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.103(f), 3.156(b)-(c), 20.200, 20.201, 20.300, 20.302, 20.1103. Since that time, new and material evidence has been received. For instance, a January 2011 VA diabetes examination notes that the Veteran's history included "eczema since Vietnam." The Board finds that this evidence is "new" because it was not previously before the adjudicator. The Board also finds that the new evidence is "material" because it relates to whether a current disorder arose during service. The Board accordingly finds that new and material evidence has been received to reopen the claim of service connection. Hence, the appeal to this extent is allowed, and the claim is now subject to review based on the entire evidentiary record. B. Service Connection As indicated, the Veteran maintains that he has had a skin condition of the right foot since first treated for cellulitis during service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In this case, the evidence is in equipoise in showing that a current skin condition first arose during service. He is shown to have a current diagnosis. At VA in November 2005, he was treated for dermatitis. A VA Dermatology consultation in January 2005 resulted in a diagnosis of eczema. A diagnosis of eczema was also made at a March 2010 VA examination. Thus, a current diagnosis is established. Next, it is not in dispute that the Veteran was treated during service for cellulitis of the right foot. He first presented for treatment in September 1968. He had follow-up treatment on multiple occasions in October 1968 and November 1968. At a December 1968 separation examination, there is no indication of this condition. Although not present at service separation, there is no dispute that he was treated during service for cellulitis of the right foot. Finally, the evidence tends to make it at least equally likely that the Veteran's current skin condition is related to the condition treated during service. On this question, there is some conflicting evidence. The March 2010 VA examiner concluded that the cellulitis treated during service had resolved. The examiner did not give an opinion indicating whether the current eczema was related the treatment for cellulitis during service. On this question, the Board looks to a December 2004 VA Skin examination. That examiner opined that it is likely that the lesions on his legs, which appear to have developed about the time he was in service, caused breaks in the skin which then led to a bacterial infection of the overlying skin (a cellulitis). The examiner explained that cellulitis is easily treatable, but the underlying condition "is less so." Later in the opinion, the VA examiner stated that the Veteran "also has a bumpy rash on his lower extremities [of] unknown etiology," and that "[t]he cellulitis which he had while in the service may well have been secondary to the bumpy rash." This VA examiner's opinion makes it at least as likely as not that the current skin condition is the same condition that developed during service. The VA examiner used the term "appear," which is not equivocal in this context. Rather, it is a statement of probability, which the Board finds equivalent to the "as likely as not" standard. The VA examiner explained that the cellulitis treated during service was likely caused by an underlying skin condition that was not easily treatable. On this point, the examiner went on to equivocate by stating that the cellulitis during service "may well have been secondary to the bumpy rash." (Emphasis added.) This apparent equivocation does not materially diminish the probative weight of the opinion, however. Importantly, it is clear that the VA examiner identified two separate skin conditions during service. One manifested by a "bumpy rash" and the other diagnosed as cellulitis. The VA examiner's opinion is not equivocal in showing that the underlying "bumpy rash" condition arose during service, which is the central question at issue here. Whether the cellulitis treated during service was a manifestation of the underlying "bumpy rash" does not appear material at this point. Thus, in reading the VA examination report as a whole, the Board finds that it tends to make it likely that the current skin condition arose during service as the "bumpy rash." Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012). Consistent with the December 2004 VA examiner's opinion, the Veteran has competently and credible asserted that the skin condition has recurred since service. The Board finds in this case that the skin condition, with its observable subjective symptoms, is of the type of medical condition for which lay evidence is competent. Therefore, his statements are probative evidence tending to increase the likelihood of a positive nexus to service. See Fountain, 27 Vet. App. at 274-75. Consequently, Board finds that the evidence is in relative equipoise in establishing that there is a direct relationship between the current skin disability and the treatment during service. Accordingly, the claim is granted. II. PTSD with Alcohol Abuse The Veteran is seeking a higher initial rating for PTSD with alcohol abuse. The appeal period now before the Board begins in July 2009, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability has been assigned a 50 percent rating prior to March 10, 2013, a 70 percent rating from March 10, 2013, and a total (100 percent) rating beginning from March 31, 2014. Because the 100 percent schedular rating in effect since March 31, 2014, is the higher rating possible, the appeal from that date forward is moot, and the Board will not discuss whether a higher rating is warranted for that time period. The Board's discussion will be limited to the time periods before that date. In a February 2017 brief, the Veteran's attorney argued that a 100 percent rating for PTSD should be granted from July 22, 2009. The attorney argued that the RO granted the 100 percent rating based on a March 2014 private examination, which stated that "the duration of the symptoms has been many years." According to the attorney, this statement is consistent with a March 2010 VA examiner's findings. The attorney argued that the March 2010 VA examination showed a 100 percent disability level. A. Applicable Law Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C.A. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. B. Rating Schedule Evaluations of mental health disorders, such as the Veteran's service-connected PTSD with alcohol abuse, are assigned under the provisions of 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. General Rating Formula for Mental Disorders: 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 100 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 70 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 50 Occupational and social impairment with 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: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) 30 Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication 10 A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication 0 Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis." See 80 Fed. Reg. 14308 (March 19, 2015); 79 Fed. Reg. 149, 45094. (The final rule made no change to the symptomatology set forth at any of the disability levels in the General Rating Formula for Mental Disorders.) The provisions of the final rule apply to all applications for benefits that are received by VA or that were pending before the agency of original jurisdiction on or after August 4, 2014. See 80 Fed. Reg. 14308. Here, the RO certified the Veteran's appeal to the Board in November 2016. Therefore the appeal is governed by DSM-IV. When evaluating mental disorders, it is not the symptoms, but the severity of their effects that determine the level of impairment caused by a psychiatric disorder. 61 F.R. 52695 (1996). Accordingly, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the presence of the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In addition to requiring the presence of the enumerated symptoms, section 4.130 also requires that those symptoms have caused the specified level of occupational and social impairment. Id. at 117-18. However, the factors listed in the rating schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating, so the determination should not be limited solely to whether a Veteran exhibited the symptoms listed in the rating scheme, but should also be based on all of a veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002); Amberman v. Shinseki, 570 F.3d 1377, 1380 (Fed. Cir. 2009); see also 38 C.F.R. § 4.126(a); compare Massey v. Brown, 7 Vet. App. 204 (1994) ("The Board's consideration of factors which are wholly outside the rating criteria provided by the regulations is error as a matter of law."). For instance, the scores assigned under the Global Assessment of Functioning (GAF) scale may be a relevant consideration. See e.g., Bowling v. Principi, 15 Vet. App. 1, 14 (2001); Richard v. Brown, 9 Vet. App. 266, 267 (1996). However, the American Psychiatric Association has since determined that the GAF score has limited usefulness in the assessment of the level of disability. Noted problems include lack of conceptual clarity and doubtful value of GAF psychometrics in clinical practice. 79 Fed. Reg. 45093 (August 4, 2014). C. Application of the Rating Schedule In this case, the Board finds that an initial 70 percent rating is assignable, but the next higher rating, 100 percent is not warranted. The current 70 percent rating has been in effect since May 10, 2013, the date of a VA examination. An effective date for an increased rating should not be assigned mechanically based on the date of an examination, but based on when the increase in the level of disability can be ascertained. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015); Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528); accord Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). Accordingly here, the May 2013 VA examination shows a 70 percent disability level, including an inability to establish and maintain effective relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and impaired judgment. The VA examiner found that there had been no changes since the last VA examination in March 2010. Looking to that March 2010 VA examination, the Board finds that it is consistent with the May 2013 VA examiner's assessment. It shows that he had "[n]o friends, no activities, [was] abusing alcohol and frequent[ly] fighting." The VA examiner actually found that the Veteran had antisocial personality disorder and this condition, with alcohol abuse, was "primarily responsible for impairment in psychosocial adjustment and quality of life." Because alcohol abuse is a component of the service-connected disability and because the VA examiner did not adequately distinguish what exact symptoms could only be attributed to PTSD with alcohol abuse, the Board has no evidentiary basis to separate the symptomatology. See Mittleider v. West, 11 Vet. App. 181 (1998) The intervening VA medical records show a level of symptomatology consistent with the VA examiners' assessments. Thus, an initial 70 percent disability level is warranted since July 22, 2009. The next higher, 100 percent disability level is not more nearly approximated at any point prior to March 31, 2014. The Veteran was not working more than marginal employment during this time period, and the Board herein below explains why a TDIU is warranted for his PTSD prior to March 31, 2014. A schedular 100 percent rating cannot be assigned however, as the Veteran did not have a total social impairment. More specifically, at the March 2010 VA examination, he was noted to have a daughter and grandchildren in a different state that he was "in touch with." He was also in contact with his brother "every once in a while." During an April 2010 VA Psychology consultation, he had been with a "female relative in a public place." Also, throughout the appeal period, such as in May 2010, he was noted to go to VFW to drink alcohol, plus he had "friends," although he had no contact with his daughter at that time In June 2010, he was "happy" to be staying at home, but did talk to his brothers on the phone. In November 2010, he found it "fun to get out and talk." He was alone for the holidays in February 2011, but in January 2010, he had been socializing with his girlfriend and her friend. In fact, at the March 2014 private examination, based upon which the RO assigned the 100 percent schedular rating, the Veteran stated that he "sees a couple of women once in a while," and his sister-in-law delivered meals to him. He generally "remain[ed] isolated and alone," but he would go to the VFW occasionally to shoot pool there, where he would "stay[] an hour or so and return[] home." This evidence is consistent with a 70 percent rating, which includes an inability to establish and maintain effective relationships, but is inconsistent with a total social impairment as he maintained some social contacts, including his brother and a girlfriend. The Veteran's attorney argues that the March 2014 private examination supports assignment of the 100 percent rating since July 2009 because the private examiner found the Veteran to be "totally occupationally and socially impaired" and stated that the "duration of the above-stated [PTSD] symptoms has been many years." However, the examiner's conclusion is internally inconsistent, and inconsistent with the remaining evidence. For example, the VA examiner summarized as follows: 1) he remains socially isolated mostly confined to home, relies on his sister-in-law for his meals; and does minimal maintenance of his residence; 2) [has] deficiencies in most areas such as work and family relations (he has been unable to hold on to a job), two short lived and failed marriages and limited or minimal contact with his only daughter; This summary is contradicted by the examiner's statement earlier in the report that the Veteran "sees a couple of women once in a while" and did not have "much contact" with his daughter (which implies that he had some contact with her). It is also inconsistent with the examiner's earlier statement that the Veteran's PTSD symptoms caused a "substantial" (but not total) "psychosocial and occupational dysfunctioning." Moreover, the examiner's indication of a total social impairment is inconsistent with the other evidence, as discussed, showing that he maintained social relationships with several people. The private examiner's statement indicating a total occupational and social impairment is easily reconciled, however. Most importantly, the private examiner went on to summarize all of the other Veteran's impairments, including deficiencies in thinking, cognitive functions (poor concentration and mild short-term memory impairment), impulse control, and judgment. The VA examiner then gave his ultimate conclusion that "[b]ecause of all these impairments, [the Veteran] is unable to maintain sustained attention, persistence and pace, and emotional stability required to carry out work functions. Therefore, he is unemployable." Thus, read overall, it is clear that the private examiner was intending to give an opinion that the Veteran was totally occupationally impaired due to his PTSD, and not totally socially impaired. See Monzingo, 26 Vet. App. at 105-06 (an examination report "must be read as a whole"). For this reason, the private examiner's opinion does not support assignment of a 100 percent schedular rating prior to March 2014. To conclude, the Board finds that the Veteran's disability picture and symptomatology, taken as a whole and in combination with the subjective and objective evidence, has more nearly approximated the criteria for an initial 70 percent rating, but not higher prior to March 31, 2014. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, the appeal to this extent is granted. III. TDIU The Veteran is also seeking a TDIU. His appeal for a TDIU was raised as a component of the initial rating claim for PTSD, thereby beginning the appeal period now before the Board. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A. Applicable Law Under the applicable criteria, total disability ratings based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. For the purpose of meeting these schedular criteria, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; and multiple injuries incurred in action, will be considered as one disability. 38 C.F.R. § 4.16(a). It is also the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Board is required to obtain the Director's decision before it may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). B. Discussion In this case, the Board finds that a TDIU is warranted from July 2009 until March 31, 2014, when the 100 percent schedular rating went into effect for his PTSD disability. The Veteran is service-connected for (1) PTSD with alcohol abuse rated as 70 percent from July 22, 2009, and 100 percent from March 31, 2014; and (2) type II diabetes mellitus rated as 10 percent from October 29, 2010, and 20 percent from May 16, 2012. His combined disability ratings were: * 70% from 07/22/2009 * 80% from 05/10/2013 * 100% from 03/31/2014 As his PTSD was assigned a schedular 100 percent rating from March 31, 2014, it is not for consideration since that date. See Buie v. Shinseki, 24 Vet. App. 242, 249-251 (2010); Bradley v Peake, 22 Vet. App. 280, 292-93 (2008). The Veteran cannot be assigned a schedular 100 percent rating and a TDIU simultaneously. Any particular disability can only be assigned a single 100 percent rating on any basis, whether schedular or a TDIU, at the same time. See 38 C.F.R. § 4.16(a); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994) ("[a] claim for TDIU presupposes that the rating for the condition is less than 100%"). Prior to March 31, 2014, the Veteran's PTSD with alcohol abuse meets the criteria for award of a schedular TDIU because it is rated at 60 percent or more. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. On this basis, the evidence shows that the Veteran was unemployable as a result of his PTSD with alcohol abuse. As a threshold matter, there has been some question as to his employment history during the appeal period. The Veteran was previously employed as a roofer. He was advised by his VA primary care doctor in November 2004 that "it will likely never be advisable for him to be on roofs again as danger of falling too great." (This caution was due to a nonservice-connected peripheral neuropathy in the lower extremities.) He stopped working as a roofer on or around that time. Since then, in a May 2014 VA Form 21-8940, the Veteran wrote that he last worked full-time and became too disabled to work on July 22, 2009, which is also when his disability first affected full-time employment. He worked as a bartender for 20 hours per week making $55 per week. He left this job due to his disabilities. The service-connected disabilities preventing him from securing or following any substantial gainful employment were PTSD and diabetes. In a June 2009 statement, he wrote that he had not worked since being laid off from his bartender job in July 2009. This occurred one week after he filed his claim. He had previously worked twice per week at his brother's bar. In a September 2010 Income Verification Report, he reported having no income from a job since July 2009. This evidence indicates that he stopped working in July 2009. In comparison, on his VA Form 21-8940, he wrote that he last worked as a bartender in June 2009, one month prior. Then, in support of an application for disability benefits from the Social Security Administration (SSA), the Veteran wrote in a Job History report that he last worked as a bartender in June 2010, nearly one year later. He again gave June 2010 as the date he last worked when filling out a Social Security Disability Report (he gave the date twice in the same report). Separately, he wrote on a SSA Disability Report that his alleged disability onset date was in June 2009. Yet, he underwent an examination for his SSA application in June 2011, where he again gave June 2010 as the date he stopped working. Thus, the Veteran has given the date he last worked as in June 2009, July 2009, and June 2010. Then, in January 2012, he presented to a private emergency room with complaints of a left hand laceration "while he was working." The Board cannot, therefore, cannot definitively establish the date he stopped working. Nonetheless, the currently accessible information in the claims file, particularly his VA Form 21-8940, indicates that any work he did after July 2009 was no more than marginal. He wrote in that form that he worked 20 hours per week at the bar making no more than $500.00 per month. This amount is below the poverty threshold of $10,856 for 2009 ($10,856 divided by 12 months is $913 per month). See VBA Manual M21-1, IV.ii.2.F.9.b., Poverty Threshold for One Person. Moreover, he worked for his brother, which indicates that the employment was likely in a protected work environment. See 38 C.F.R. § 4.16(a). On this basis, the Board finds that the Veteran was working no more than marginal employment since July 2009. See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). The Board next finds that the Veteran was unemployable as a result of his PTSD with alcohol abuse. In his VA Form 21-8940, the Veteran wrote that he had four years of high school education, but no further education or training. He previously worked as roofer and last worked as a bartender. The Board next finds that his PTSD disability would most likely preclude more than marginal employment in a job consistent with his background and education. As shown, his PTSD disability manifested with difficulty in adapting to stressful circumstances (including work or a worklike setting) and inability to establish and maintain effective relationships. He had irritability with periods of violence. The private examiner, consistent with the remaining evidence of record, explained that the "[b]ecause of all these impairments, [the Veteran] is unable to maintain sustained attention, persistence and pace, and emotional stability required to carry out work functions." This examiner's opinion as to the Veteran being unemployable is nondeterminative because the unemployability determination is left to the judgment of the adjudicator; it is not a medical determination. See 38 C.F.R. § 4.16(a); Floore v. Shinseki, 26 Vet. App. 376 (2013). Nonetheless, the examiner provided a good summary of the Veteran's impairments and the likely impact of those impairments on his ability to function in an occupational environment. The Board, therefore, finds the private examiner's assessment probative on this question. It indicates that he would unlikely be able to gain or maintain more than marginal employment consistent with his background, training, and education because any job, whether sedentary or physical, would require a degree of emotional stability, sustained attention, persistence and pace to carry out the job functions, which is beyond the Veteran's capacity. Moreover, as discussed herein above in relation to his PTSD disability, the Veteran's functioning throughout the appeal period since July 2009, as it concerns PTSD symptoms, remained relatively unchanged. Accordingly, the Board finds that the evidence supports a conclusion that the Veteran was unemployable since July 2009, when the 70 percent disability rating went into effect for the PTSD disability. As the Veteran was previously awarded a 100 percent schedular rating for his PTSD disability beginning March 31, 2014, the TDIU must be discontinued from that date. To this extent the appeal is granted. The Board herein below remands the issue of entitlement to a TDIU since March 31, 2014. ORDER As new and material evidence has been received to reopen the claim of service connection for cellulitis, right foot, the appeal to this extent is allowed. Service connection for a skin disability of the right foot, diagnosed as eczema and dermatitis, is granted. An initial 70 percent disability rating for PTSD with alcohol abuse, but not higher, is granted. A total disability rating based on individual unemployability due to service-connected disability is granted from July 22, 2009, until March 31, 2014. REMAND The Board has conducted a preliminary review of the remaining matters, but has found that further evidentiary development is warranted before a final decision may be reached. Hypertension The evidence shows that the Veteran has hypertension. A January 2011 VA examination report addressed the possible relationship between his hypertension and his service-connected diabetes. However, an opinion has not yet been provided as to the possibility of a relationship between the Veteran's hypertension and his presumed exposure to herbicide agents such as Agent Orange. Although hypertension is not listed as a disease associated with herbicide exposure under 38 C.F.R. § 3.309(e), the National Academy of Sciences Institute of Medicine has concluded that there is "limited or suggestive evidence of an association" between herbicide exposure and hypertension. See 77 Fed. Reg. 47924, 47926-927 (Aug. 10, 2012). Thus, a remand for a medical opinion is warranted for the hypertension claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Furthermore, the Veteran informed a VA examiner in March 2010 that he had high blood pressure when he left service in the 1960s and tried to "sign in" for VA care. No efforts have been made to obtain the VA treatment records from the 1960s. Upon remand, this action is necessary. TDIU Since March 31, 2014 A TDIU rating is provided where the combined schedular evaluation for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). A 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35(2001) (finding request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, even though no additional disability may be paid when a disability rating of 100 percent is already in effect, a separate award of TDIU based on a single service-connected disability may form the basis for a claim for special monthly compensation (SMC). See Bradley v. Peake, 22 Vet. App. 280 (2008), resulting in revocation of VAOPGCPREC 6-99, which held that TDIU could not be considered if a claimant already had a 100 percent rating for one or more disabilities. In this case, the Veteran has a 100 percent rating for his service-connected PTSD, effective March 31, 2014. Accordingly, an award of TDIU after March 31, 2014 based on PTSD would result in duplicative payment. However, the award of a total schedular rating for PTSD from March 31, 2014 does not moot the issue of entitlement to TDIU, as TDIU may still be assigned on the basis of the Veteran's remaining service-connected disabilities. See Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 249-251 (2010); Bradley v Peake, 22 Vet. App. 280, 292-93 (2008). The question before the Board is whether his other service-connected disabilities of a right foot skin condition and Type II diabetes, alone, renders him unemployable. Thus, the issue of TDIU from March 31, 2014 remains in appellate status, but only for the limited purpose of determining whether the Veteran is entitled to SMC under 38 U.S.C.A. § 1114 (s). The Board herein above grants service connection for a skin condition of the right foot. Assignment of the initial disability rating for that condition will impact the Veteran's eligibility for a schedular TDIU under 38 C.F.R. § 4.16(a). The claim for a TDIU is, therefore, procedurally intertwined with that issue. As such, a decision by the Board on the Veteran's TDIU claim would, at this point, be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); cf Todd v. McDonald, 27 Vet. App. 79 (2014). Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records from the 1960s. The request should include non-electronic and/or archived paper records that have been scanned into the VA electronic health record. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Forward the claims file to a physician in connection with the hypertension claim. The physician should review the evidence in the claims file. The physician should then provide an opinion as to whether it is at least as likely as not that the Veteran's hypertension had its onset during or is otherwise related to his active service. In answering this question, the examiner is asked to consider the statements from the Veteran indicating that he had high blood pressure when he left service and tried to enroll for VA care in the 1960s. The examiner is asked to explain why his statement makes it more or less likely that hypertension started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported. The opinion should also include consideration of the Veteran's presumed exposure to certain herbicide agents, such as Agent Orange, as the National Academy of Sciences Institute of Medicine has concluded that there is "limited or suggestive evidence of an association" between herbicide exposure and hypertension. In answering this question, the examiner is asked to disregard whether the disorder is one for which a "presumption" is established and, instead, to answer whether the hypertension is a result of Agent Orange exposure even though it is not on the list of "presumptive" diseases. The physician should provide a complete rationale or explanation for all opinions reached. 3. After completing all actions set forth in paragraphs 1-2, undertake any further action needed as a consequence of the development completed in paragraphs 1-2 above. Also, issue a decision assigning an initial disability rating for the service-connected skin condition of the right foot. Then, readjudicate the remanded claims with consideration of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations. The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs