Citation Nr: 1754612	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  16-42 508	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio 


THE ISSUES

1.  Entitlement to an effective date earlier than May 28, 2010 for a grant for service connection for tinnitus. 

2.  Entitlement to an effective date earlier than September 12, 2016, for a grant of service connection for posttraumatic stress disorder (PTSD).

3.  Entitlement to service connection for ischemic heart disease as a result of exposure to herbicides. 

4.  Entitlement to service connection for a right hand cyst. 

5.  Entitlement to service connection for gastroesophageal reflux disease (GERD). 

6.  Entitlement to an initial compensable rating for residuals of a right hydrocelectomy. 

7.  Entitlement to an initial compensable rating for hypertension prior to April 6, 2016, and in excess of 10 percent from that date (including consideration of an earlier effective date for the 10 percent rating during the appeal period). 

8.  Entitlement to a rating in excess of 10 percent for bilateral hammertoes of the second toes with plantar keratoma.

9.  Entitlement to a rating in excess of 50 percent for major depressive disorder (MDD) prior to September 12, 2016, and in excess of 50 percent for PTSD with depression, from September 12, 2016.  

10.  Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU).

11.  Entitlement to a rating in excess of 10 percent for degenerative disc and joint disease of the lumbosacral spine prior to August 18, 2015, and in excess of 20 percent disabling from that date. 

12.  Entitlement to service connection for bilateral hearing loss. 

13.  Entitlement to service connection for obstructive sleep apnea (OSA) to include as secondary to service-connected PTSD with depression. 

14.  Entitlement to service connection for glaucoma. 

15.  Entitlement to service connection for bilateral gynecomastia, status-post subcutaneous mastectomy

16.  Entitlement to service connection for a left knee condition. 

17.  Entitlement to service connection for a right knee condition. 

18.  Entitlement to service connection for a right shoulder condition. 

19.  Entitlement to service connection for a left shoulder condition. 

20.  Entitlement to service connection for a cervical spine condition. 

21.  Entitlement to service connection for rheumatoid arthritis. 


REPRESENTATION

Appellant represented by:	J. Michael Woods, Attorney


ATTORNEY FOR THE BOARD

J. Connolly, Counsel


INTRODUCTION


The Veteran had active service from November 1960 to October 1962, from June 1965 to June 1968, and from July 1970 to June 1986.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA).  

During the course of the appeal, the disability ratings for hypertension and for MDD/PTSD with depression were increased.  However, the United States Court of Appeals for Veterans Claims (Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal."  AB v. Brown, 6 Vet. App. 35, 38 (1993).  Consequently, the matters of higher ratings remain in appellate status.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C. § 7107(a)(2) (2012).

The issues of service connection for bilateral hearing loss; OSA; glaucoma, bilateral gynecomastia status-post subcutaneous mastectomy; left knee condition, right knee condition; right shoulder condition; left shoulder condition; cervical spine condition; and for rheumatoid arthritis; as well as a rating in excess of 10 percent for degenerative disc and joint disease of the lumbosacral spine, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  An original claim for service connection for tinnitus and PTSD was first received at the RO on May 28, 2010.

2.  There is no evidence dated prior to the date of the claim establishing an informal or formal claim of service connection for tinnitus or PTSD.

3.  The evidence shows that tinnitus has existed since service.

4.  PTSD was initially diagnosed on a VA examination on September 12, 2016.

5.  CAD is attributable to service.  

6.  The Veteran has not had a cyst of the right hand during the appeal period which is attributable to service.  

7.  GERD is not attributable to service.  

8.  The Veteran's residuals of a right hydrocelectomy do not result in testicular atrophy, testicle removal, or other symptoms.

9.  From May 28, 2010, the Veteran's blood pressure has been continuously controlled by medication, but has not been manifest by diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more.

10.  The Veteran's bilateral hammertoe disability involves hammertoes of the second toes on both feet with an intermittent plantar keratoma; the Veteran does not have a claw foot of either foot.

11.  From May 28, 2010, the Veteran's service-connected psychiatric disability was productive of no more than occupational and social impairment, with deficiencies in most areas.

12.  From May 28, 2010, the Veteran meets the schedular criteria for a TDIU and the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation.


CONCLUSIONS OF LAW

1.  The legal criteria for an effective date earlier than May 28, 2010, for the award of service connection for tinnitus have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017).

2.  The legal criteria for an effective date earlier than September 12, 2016, for the award of service connection for PTSD have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017).

3.  CAD may be presumed to be the result of herbicide exposure during active military service in Vietnam.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2017).  

4.  A cyst of the right hand was not incurred or aggravated in active service.  38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017).

5.  GERD was not incurred or aggravated in active service.  38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017).

6.  The criteria for a compensable rating for residuals of a right hydrocelectomy have not been met.  38 U.S.C.§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115b, Diagnostic Code 7523 (2017).

7.  From May 28, 2010, the criteria for a 10 percent rating, but not higher, for hypertension are met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.104, Diagnostic Code 7101 (2017).

8.  The criteria for a rating in excess of 10 percent for bilateral hammertoes of the second toes with plantar keratoma are not met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71, Diagnostic Code 5282 (2017).

9.  From May 28, 2010, the criteria for a 70 percent rating for service-connected psychiatric disability, currently PTSD with depression, are met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017).

10.  From May 28, 2010, the Veteran is individually unemployable by reason of his service-connected disabilities.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341(a), 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA) 

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159.  Here, the Veteran was provided with the relevant notice and information.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim and all appropriate development was undertaken in this case.  The Veteran has not alleged any notice or development deficiency during the adjudication of the claims.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  

Earlier Effective Dates for Service Connection for Tinnitus and PTSD

The Veteran has been awarded service connection for tinnitus effective May 28, 2010, and for PTSD, effective September 12, 2016, for a grant of service connection for PTSD with depression.  Service connection was in effect prior to that date for MDD (from July 1986).

On May 28, 2010, correspondence was received from the Veteran in which he indicated that he was seeking service connection for tinnitus and PTSD.  

Thereafter, the Veteran was afforded VA examinations.  The September 2010 audiological examination diagnosed tinnitus since service.  The September 2010 psychiatric examination did not diagnose PTSD.  

An April 2011 rating decision denied service connection for tinnitus and for PTSD.  The Veteran was granted an increased rating for MDD which, as noted, was already service-connected.

A subsequent August 2012 private report reflected a diagnosis of tinnitus.  

A subsequent February 2013 psychiatric examination did not diagnose PTSD.  A May 2016 examination continued to show subthreshold PTSD symptoms.  A subsequent September 12, 2016 examination made a definitive diagnosis of PTSD that conformed to DSM-V criteria for that disability.

A January 2017 rating decision granted service connection for tinnitus from May 28, 2010, and service connection for PTSD, effective September 12, 2016.

The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400.  Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  38 U.S.C. § 5110(a).  The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim "will be the date of receipt of the claim or the date entitlement arose, whichever is the later."  38 C.F.R. § 3.400.

With a claim for service connection, the effective date of an award will be (1) the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service or (2) the date of receipt of claim or date entitlement arose, whichever is later.  38 C.F.R. § 3.400(b)(2)(i).

"Claim" is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-35 1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  The Board notes that, effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary.  See 79 Fed. Reg. 57,660 (Sept. 25, 2014).  This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2).  These amendments, however, are only applicable with respect to claims and appeals filed on or after March 24, 2015, and are not applicable in the present case.  Id. at 57,686.  As such, any communication or action in this case, indicating an intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim.  Such an informal claim must identify the benefits sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  38 C.F.R. § 3.155(a).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  An application 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); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999), (an expressed intent to claim benefits must be in writing in order to constitute an informal claim; an oral inquiry does not suffice).

According to the Court, 38 C.F.R. § 3.157 only applies to a defined group of claims.  See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service connected rating where service connection has already been established).  VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established.  The mere presence of medical evidence does not establish intent on the part of the veteran to seek service connection for a condition.  See Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim).  Merely seeking treatment, does not establish a claim, to include an informal claim, for service connection.

Further, the mere presence of a disability does not establish an intent on the part of the veteran to seek service connection for that condition.  See KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1995).  Thus, any prior VA medical are not interpreted as an informal claim.  Stated differently, merely seeking treatment, does not establish a claim, to include an informal claim, for service connection.  

Applying the statute and the regulations cited above, the Veteran is not entitled to an effective date earlier than May 28, 2010 for an award of service connection for tinnitus, or earlier than September 12, 2016, for a grant of service connection for PTSD.  The statute is clear.  It states that the effective date of an award based on an original claim for service connection "shall not be" prior to the date of receipt of claim.  The regulation is clear.  It states that if the claim is not received within one year following separation from service, then the effective date is the date of claim or date entitlement arose, whichever is later.  38 C.F.R. § 3.400 and 3.400(b)(2)(ii).  In this case, a claim was not received within a year of service for service connection for tinnitus or PTSD.  The claim for both was received on May 28, 2010.  For tinnitus, the date of entitlement precedes the date of the claim here as his tinnitus existed since service.  Thus, the date of claim as the later date is the controlling date for the effective date assigned under the factual circumstances for service connection for tinnitus.  With regard to PTSD, the date of entitlement is the later date and the controlling date for the assigned effective date.  Although the Veteran had psychiatric diagnoses and was granted service connection for MDD prior to September 12, 2016, it was not until that date that PTSD was diagnosed.  Thus, based on the facts in this case, an effective date earlier than May 28, 2010 for an award of service connection for tinnitus, or earlier than September 12, 2016, for a grant of service connection for PTSD, is legally precluded.  See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i).  

Service Connection

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306.  

In addition, arthritis, cardiovascular disease and valvular heart disease will be presumed to have been incurred in or aggravated by service if such disease becomes manifest to a degree of 10 percent or more within one year of a veteran's separation from service.  38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  With chronic diseases shows as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date.  Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim.  38 C.F.R. § 3.303(b).  This regulation pertains to "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases).  Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013).  

The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b).  Walker, supra.  Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation").  

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

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

In addition, service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the nonservice-connected disease or injury.  Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994).  There must be competent evidence of a current disability; evidence of a service-connected disability; and competent evidence of a nexus between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995).  

Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

Ischemic Heart Disease

The Veteran served in Vietnam and is presumed to have been exposed to herbicides.

VA law and regulations further provide that a chronic, tropical, or prisoner-of-war related disease, or a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 will be considered to have been incurred in or aggravated by service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than the ones listed in 38 C.F.R. § 3.309(a) will be considered chronic. 38 U.S.C. §§ 1101, 1112, 1113, 1116; 38 C.F.R. § 3.307(a).

A veteran, who had active service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).  In addition, in certain circumstances, a veteran may have been exposed to herbicides while serving in Thailand and Korea.  

Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure.  As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of the following conditions: chloracne or other acneform disease consistent with chloracne, non-Hodgkin's lymphoma, soft tissue sarcoma, Hodgkin's disease, porphyria cutanea tarda (PCT), multiple myeloma, early onset peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson's disease, ischemic heart disease, and B-cell leukemias, such as hairy cell leukemia.  See 38 C.F.R. § 3.309(e).

For purposes of 38 C.F.R. § 3.309(e), the term "ischemic heart disease" includes acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease and coronary bypass surgery; and stable, unstable and Prinzmetal's angina.  However, "ischemic heart disease" does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease.  38 C.F.R. § 3.309, note 3.

VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted.  See 68 Fed. Reg. 27,630 (May 20, 2003).  In this regard, the Board observes that VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended to certain specific disorders, based upon extensive scientific research.  See, e.g., Notices, 68 Fed. Reg. 27,630 -41 (2003); 64 Fed. Reg. 59,232 -243 (1999); 61 Fed. Reg. 57,586 -589 (1996).  However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that an appellant is not precluded from establishing service connection with proof of actual direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998).  The Court has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure.  McCartt v. West, 12 Vet. App. 164, 167 (1999). 

The service treatment records (STRs) reveal no complaints, findings, treatment, or diagnosis of heart disease or injury.  

Post-service medical evidence includes VA examination reports.  A February 2013 VA examination diagnosed coronary artery disease.  This examination report was not mentioned in the statement of the case.  Accordingly, service connection for CAD is warranted on a presumptive basis due to inservice herbicide exposure in Vietnam.  

Right Hand Cyst

The STRs do not reflect complaints, findings, treatment, or diagnosis of a cyst of the right hand.  During the appeal period, the Veteran has had VA examinations as well as private and VA clinical treatment, but none of these records show any cyst of the right hand.  Although the Veteran has complained of pain in the right hand, there is no suggestion of pain due to a cyst.  

The Court consistently has held that, under the law, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."  Watson v. Brown, 4 Vet. App. 309, 314 (1993).  This principle has been repeatedly reaffirmed by the Federal Circuit Court, which has stated, "a Veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the Veteran's service and the disability."  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).  The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed).  In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability.  See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists).  

At no time during the appeal period has the Veteran had a cyst of the right hand.  Absent a current diagnosis, service connection is not warranted.

GERD

The STRs do not reveal any diagnosis of GERD, but the Veteran was treated for dyspepsia/epigastric indigestion on one occasion in 1975.  However, the January 1986 retirement examination yielded only normal findings.  Several years after he separated from service, the Veteran was diagnosed as having GERD.  The Veteran currently has GERD.

In order to determine if the current GERD is etiologically related to the inservice gastrointestinal complaints, the Veteran was afforded a VA examination in September 2010.  The examiner reviewed the records and noted the inservice finding as well as the post-service evidence.  The examiner noted that inservice diagnosis of dyspepsia in 1975, but also that there was no diagnosis of GERD at that time.  The examiner stated dyspepsia is a common self-limiting condition that typically occurs after eating a large meal.  The examiner indicated that GERD is a chronic condition that typically is due to incompetence of the lower esophageal sphincter.  The examiner opined that the initial diagnosis of GERD was made four years after service and was not caused by or a result of service.

The separation examination was normal.  Thus, even though the Veteran had dyspepsia on one occasion, the Veteran had no residual gastrointestinal disability shown during service.  Further, the Board may consider whether the silence of the Veteran in reporting complaints regarding gastrointestinal problems constitutes negative evidence.  See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom.  Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact).  In this case, it does constitute negative evidence.  There is not just a lack of evidence; rather, there is evidence showing normal findings.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  The absence of evidence in support of an alleged fact clearly is an evidentiary circumstance that weighs against the existence of the alleged fact.  In this case, the clinical records do not show the claimed ongoing nature of residuals of the purported disease.  

There is also a medical opinion of record.  In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ( "[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

The VA opinion provided rationale.  The examiner was aware of the Veteran's medical history, provided a fully articulated opinion, and also furnished a reasoned analysis.  The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included a review of the background of the Veteran.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). 

The Board has considered the Veteran's own opinion that his GERD is related to service.  However, as a lay person in the field of medicine, the Veteran does not have the training or expertise to render a competent opinion which is more probative than the VA examiner's opinion on this issue, as this is a medical determination that is complex.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)).  Thus, the Veteran's opinion by itself is outweighed by the findings to the contrary by the VA examiner, a medical professional who considered the pertinent evidence of record and found against such a relationship.  See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).

The most probative evidence does not link the Veteran's GERD disability to service, but instead indicated that there was no etiological relationship.  There was a basis for the examiner's opinion as he noted the nature of the inservice complaints as well as the initial onset of GERD.  Accordingly, as the most probative evidence establishes that there is no causal connection between current GERD disability and service, service connection is not warranted.  

Ratings

Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The Veteran's entire history is reviewed when making disability evaluations.  See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

In deciding the Veteran's higher or increased evaluation claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the Veteran is entitled to a higher evaluation for separate periods based on the facts found during the appeal period.  In Fenderson, the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder.  In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Id. at 126.  Hart appears to extend Fenderson to all increased rating claims.

Residuals of a Right Hydrocelectomy

On a September 2010 examination, it was noted that the Veteran had a right hydrocele in service so underwent a hydrocelectomy in service.  The Veteran reported urgency and nocturia times one.  He stated that his stream was split as well.  He indicated that he had dribbling after urination at times.  He denied a history of recurrent urinary tract infections, obstructed voiding, urinary tract stones, renal dysfunction or renal failure, acute nephritis, hydronephrosis, and erectile dysfunction.  On examination, there was no abnormality of the penis, testicles or scrotum and there was no scar.  The examiner did not attribute urinary problems to the hydrocelectomy.  There was no functional impairment due to the hydrocelectomy.

In February 2013, the Veteran was afforded a VA examination.  It was noted that the Veteran underwent removal of a right-sided hydrocele.  The Veteran denied any change in the status of the condition and he was not receiving current treatment.  The Veteran had voiding dysfunction, but it was due to benign prostate hypertrophy (BPH) which caused urine leakage and increased urinary frequency.  There was no erectile dysfunction.  The Veteran declined other reproductive examination.  It was noted that there was no impact on employment.

In May 2016, the Veteran was afforded a VA examination.  The examination revealed erectile dysfunction and urinary dysfunction due to BPH.  Although the Veteran indicated that his right testicle had been removed, it was present.  The left testicle was smaller than the right testicle.  The Veteran declined a prostate examination.  It was noted that there was no impact on employment.

The Veteran's residuals of a right hydrocelectomy have been evaluated as noncompensably disabling under 38 C.F.R. § 4.115b, Diagnostic Code 7523.  That code pertains to atrophy of the testis and provides for a noncompensable evaluation for complete atrophy of one testis and a 20 percent evaluation for complete atrophy of both testis.  Diagnostic Code 7524 provides ratings for testicle removal.  Although the Veteran reported that his testicle was removed, the examination reports show that there was no such removal.  Alternatively, Diagnostic Code 7525 pertains to epididymo-orchitis and is rated as a urinary tract infection.  However, urinary dysfunction in this case is not due to right hydrocelectomy.  Likewise, prostate and erectile issues are also due to other medical conditions.  

Based on the pertinent evidence, the Board finds that a compensable rating is not warranted for the residuals of the right hydrocele.  The Veteran does not have testicular atrophy to warrant a compensable rating under Diagnostic Code 7523.  Further, the other evidence of record, to include the Veteran's VA examinations and treatment records, does not contain any indication of symptoms related to the hydrocele that would support a compensable rating.  Thus, the Board finds that a compensable rating is not warranted.

In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  In this case, the preponderance of the evidence is against a compensable rating for residuals of a right hydrocelectomy.

Hypertension

In September 2010, the Veteran was afforded a VA examination.  His sitting blood pressure was 135/77, standing was 124/82, and recumbent was 122/79.  It was noted that medication was required for control.  The Veteran had no history of arteriosclerotic complications secondary to hypertension.

A July 2012 private report included a blood pressure reading of 108/66.

In February 2013, the Veteran was afforded a VA examination.  It was noted that the Veteran was on continuous medication, Lisinopril HCTZ.  Recent blood pressure readings were 147/84, 141/84, and 127/77.  There was no impact on work.

In May 2016, the Veteran was afforded a VA examination.  It was noted that the Veteran was still taking Lisinopril HCTZ.  His blood pressure readings were 159/80, 165/79 and 165/79.  The average blood pressure reading was 163/79.  There was no impact on work.

An April 2011 rating decision granted service connection for hypertension and assigned an evaluation of 0 percent effective May 28, 2010.  A June 2016 rating decision granted a higher rating of 10 percent from April 6, 2016.  The Veteran claims an even higher rating is warranted and also asserts that an "earlier effective date" is warranted for a higher rating.  That noted, the consideration of a higher rating for the entire appeal period is already for consideration per Fenderson and Hart.

Hypertension is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101.  Under Diagnostic Code 7101, a 10 percent evaluation is warranted for diastolic pressure of predominantly 100 or more or systolic pressure of predominantly 160 or more; a 10 percent evaluation is also the minimum evaluation for an individual with a history of diastolic pressure of predominantly 100 or more who requires continuous medication for control.  A 20 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more.  Hypertensive vascular disease with diastolic pressure predominantly 120 or more is rated 40 percent disabling.  Hypertensive vascular disease with diastolic pressure predominantly 130 or more is rated 60 percent disabling.  Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 

In this case, from May 28, 2010, the Veteran's blood pressure has been continuously controlled by medication.  As such, a 10 percent rating is warranted for the appeal period.  However, at no time has the Veteran's hypertension been manifest by diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more.

In this case, the evidence supports a 10 percent rating for the entire appeal period, but a preponderance of the evidence is again a rating in excessive of 10 percent for hypertension.

Hammertoes with Plantar Keratoma

In September 2010, the Veteran was afforded a VA examination.  At that time, it was noted that the Veteran had a history of hammertoes of the second toes on both feet.  He noted daily pain in both toes when he walked which was an ache.  He used NSAIDs with a poor response.  He also had a plantar keratoma near the 5th metatarsophalangeal (MTP) joint of the left foot.  He reported sharp pain on a daily basis that was caused by walking.  He did not take pain medication.  He had subjective complaints of pain, but he denied weakness or fatigability.  He did not use corrective devices.  The feet symptoms had no effect on the Veteran's ability to function in his usual occupation.  He was retired and was able to accomplish his activities of daily living.  On examination, there was no objective evidence of painful motion, edema, weakness or instability.  There was mild tenderness of the proximal interphalangeal (PIP) joint of the left second toe.  The Veteran was able to stand for 30 minutes and walk for 1 mile.  There was no evidence of abnormal weight bearing.  He did not have flat feet.  The skin was warm and dry.  Pulses were palpable bilaterally.  There was a normal arch.  He had hammertoes of the second toes on both feet.  There were no calluses on these toes.  He had a small plantar keratoma near the 5th MTP joint which was non-raised at this time and he stated that his wife filed it down at times.  There were no functional limitations.

In February 2013, the Veteran was afforded a VA examination.  It was noted that the Veteran had bilateral hammertoes on the second toes.  There were no other symptoms.  X-rays showed bilateral degenerative or traumatic arthritis.  There was no impact on employment.

In August 2015, the Veteran was afforded a VA examination which documented the same hammertoes.  The Veteran reported that he received a regular trimming of calluses.  He also had orthopedic shoes and insoles.  He stated these measures helped his foot pain, but he still had a lot of problems.  Foot pain due to gout was noted.  The Veteran had pain with walking, but no flare-ups.  The pain was accentuated on use.  He did not have pain on manipulation of the feet or swelling on use.  He had characteristic callouses and wore built up shoes and orthotics.  He did not have extreme tenderness of plantar surfaces on one or both feet.  He did have decreased longitudinal arch height of one or both feet on weight-bearing.  There was no objective evidence of marked deformity of one or both feet.  There was not marked pronation of one or both feet.  For both feet, both feet, the weight-bearing line did not fall over or medial to the great toe.  There was not a lower extremity deformity other than pes planus, causing alteration of the weight-bearing line.  The Veteran did not have "inward" bowing of the Achilles tendon (i.e., hindfoot valgus, with lateral deviation of the heel) of one or both feet.  The Veteran did not have marked inward displacement and severe spasm of the Achilles tendon (rigid hindfoot) on manipulation of one or both feet.  He had pain on weight-bearing, disturbance of locomotion, and interference with standing, of both feet.  The Veteran did not otherwise have pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or when the foot is used repeatedly over a period of time nor was there functional impairment.  The Veteran did not have other feet conditions.  X-rays showed degenerative or traumatic arthritis.  With regard to industrial impairment, it was noted that prolonged standing or walking may produce foot pain.  

In September 2016, the Veteran was afforded a VA examination.  The diagnoses of degenerative arthritis and gout were noted.  Both feet were moderately severe and there was chronically compromised weight bearing.  The Veteran used accommodations in his shoes.  The Veteran had pain on examination on weight bearing and non-weight bearing.  He also had swelling.  The Veteran occasionally used a brace, constantly used a cane, and regularly used a walker, but these devices were used for other conditions.  Pain affected employment because he had difficulty walking.  Thereafter, the Veteran continued to receive orthotic adjustments.

The Board notes that while the Veteran has several foot disabilities, he is only service-connected for bilateral hammertoes with plantar keratoma.  This disability is rated under Diagnostic Code 5282 which specifically rates hammertoes.  Under 38 C.F.R. § 4.71a, Diagnostic Code 5282, hammertoes are assigned a noncompensable rating for single toes and a 10 percent rating for all toes, unilateral without claw foot.  Thus, the Veteran is receiving the maximum rating at 10 percent.  If the Veteran had claw foot, he could be assigned a higher rating based on unilateral or bilateral involvement under Diagnostic Code 5278.  However, the Veteran does not have claw foot.  The most appropriate code for the Veteran is Diagnostic Code 5282 as that specifically represents the service-connected disability.

In this case, a preponderance of the evidence is again a rating in excessive of 10 percent for bilateral hammertoes with plantar keratoma.

MDD/PTSD with Depression

The Veteran was afforded a VA examination in September 2010.  He was neat, clean, and appropriate in appearance.  His psychomotor activity, speech, and affect were normal.  His mood was depressed.  His attention was intact.  He was able to do serial 7's and was able to spell and world forward and backward, but he had much difficulty with serial 7's.  He was oriented in all spheres.  His thought process and content were unremarkable.  He had no delusions or hallucinations.  He did not understand the outcome of his behavior.  He partially understood that he had a problem.  He had inappropriate behavior as he would get violent and irritable at times.  It was unclear if the Veteran had obsessive or ritualistic behavior.  The Veteran did not have panic attacks.  He did not have homicidal or suicidal ideation.  He had poor impulse control with angry outbursts and violence.  It was noted that the Veteran frequently cried during the session in a dramatic (and sincere) fashion.  He angrily said that he refused to provide details of traumas and that he realized this would keep the examiner from doing a PTSD evaluation.  His remote memory was intact but recent memory was moderately impaired and immediate memory was mildly impaired.  He said he had forgetfulness and would sometimes get lost.  His mood reflected significant depression and irritability.  The examiner noted the Veteran was retired based on age or duration of time at work.

May 2012 VA psychiatric treatment records reflected that the Veteran did not feel that psychiatric medications were working for him.  When he was advised to show his medication sheet to his outside provider, he immediately became extremely angry and insulting and said he knew what to do.  He shouted in a loud voice and eventually calmed down and looked as though he was going to cry.  His affect calmed down to being dysphoric.  He denied any suicidal/homicidal ideation at this time.  His GAF was 40.  Subsequent treatment was consistent.  In October 2012, the Veteran still presented as being angry and hostile.  His depression was a little better.  His appetite was poor.  He had angry outbursts on a daily basis.  On mental status examination, he was dressed casually and was adequately groomed.  His eye contact was fair and he was grossly alert and oriented.  His speech was clearly articulated and non-pressured.  His affect was tearful at times.  His mood was explosive at times.  His thought process was linear and logical.  His thought content was organized.  He had no suicidal or homicidal ideation, intent, or plan.  There was no evidence of delusional thoughts or perceptual disturbances.  Insight and judgment were adequate.  His cognition was grossly intact.  His GAF was 45.  January 2013 records showed that the GAF remained 45.

In February 2013, the Veteran was afforded a VA examination.  The Veteran indicated that he spent his time during the day just doing what he wanted to do when he wanted to do it.  He reported that he spent time at the Mason's Lodge, he attended church regularly on Sundays, and every Friday he went to a group session at the Vet Center.  He frequently traveled with his wife and engaged in activities around the house.  He reported that his depression had gotten worse.  He had other symptoms including anger, irritability, hostility, crying, sleep problems, anxiety, defensiveness, difficulty trusting others, thoughts and memories of Vietnam, and nightmares 3 to 4 times a week.  He had a depressed mood, anxiety, chronic sleep impairment, as well as mild memory loss such as forgetting names directions or recent events.  On mental status examination, the Veteran was cognitively intact.  He denied suicidal and homicidal ideations.  He denied hallucinatory experiences.  He was very cordial and appropriate during the examination.  The examiner did not feel that the Veteran was unemployable due to psychiatric impairment.  The examiner indicated that the Veteran's psychiatric symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily with normal routine behavior self-care and conversation.

In May 2016, the Veteran was afforded a VA examination.  He exhibited depressed mood, anxiety, chronic sleep impairment, and mild memory loss, such as forgetting names, directions or recent events.  The Veteran was alert and oriented to person, place, the date, time, and situation.  The Veteran's clothing was appropriate to the situation and weather.  He maintained appropriate eye contact.  The Veteran exhibited acceptable hygiene.  His speech was within normal limits with regard to rate, rhythm and volume.  He walked with a normal gait.  The Veteran was cooperative and actively participated in the evaluation procedures.  His affect was appropriate to discussion.  The Veteran described his mood as "not too good."  He reported symptoms of "hyperarousal and defensiveness."  The Veteran endorsed symptoms of depression including sleep deficits, irritability, poor concentration, loss of pleasure, low energy, hopelessness, and worthlessness.  He did not report thoughts of suicide.  He denied homicidal ideation.  He reported having trouble "getting Vietnam off my mind."  He noted that sometimes it felt like "I'm there still."  He said he made efforts to not think about what happened.  He said he had nightmares 3-4 times per week concerning Vietnam.  He reported that he was often on guard "and easily set off."  He added that he got easily startled by sudden noises.  At times, he reported that his heart raced but he did not report sufficient symptoms to meet full criteria for panic attacks.  He did not report nor were there clear indications of obsessions, compulsions, or manic symptoms.  Regarding his mental content, the Veteran's thought processes were linear.  His associations were goal-directed.  He noted hearing things "like from Vietnam."  It was unclear if such symptoms represented actual hallucinations.  There were no indications of delusions.  Regarding activities of daily living, he reported that he kept up with his personal hygiene.  He stated that he was able to cook, clean, and complete other basic household chores.  He reported that he has a bank account and driver's license.  His judgment in hypothetical situations was intact.  He exhibited adequate abstract reasoning and comprehension.  He was able to remember events from the past indicating no significant long term memory issues.  He reported concentration deficits that were evident during his mental status examination.  The examiner noted that the Veteran was continuing to experience subthreshold PTSD symptoms characteristic of a diagnosis of "Other specified trauma and stressor related disorder, adjustment-like disorders" with prolonged duration of more than 6 months without prolonged duration of stressor.  Moreover, he was continuing to experience symptoms of depression characteristic of "Other specified depressive disorder."  The examiner stated that both of these conditions should be considered as DSM-5 continuations of the previously diagnosed Anxiety disorder, NOS and Depressive disorder, NOS conditions.  These conditions were likely to have an intermittently negative impact on his social and occupational functioning.  However, the Veteran stated that he worked for the Postal Service for 17 years and did relatively well in terms of his job performance. As such, it was unlikely that his current mental health symptoms would have a significant impact on his work capacity.  The examiner indicated that the psychiatric disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  The Veteran received subsequent outpatient treatment. 

In September 2016, the Veteran was afforded a VA examination.  The Veteran had social isolation, crying spells, anxiety, decreased appetite, hypersomnia, nightmares, hyper arousal, constant defensiveness, panic attacks, exaggerated startle response, and difficulties being around crowds, nightmares, flashbacks, avoidance of reminders, significant psychological reaction to reminders of stressful circumstances, hypervigilance, persistent exaggerated negative beliefs, persistent negative emotional state, irritability with anger outbursts, depressed mood, chronic sleep impairment, memory loss, circumstantial and stereotyped speech, disturbed mood and motivation, and suicidal ideation.  The diagnosis was PTSD.  The Veteran continued to use psychotherapy.

In May 2017, a private psychological evaluation was conducted.  The examiner indicated that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood with severe symptoms to include: memory loss for names of close relatives, own occupation, or own name; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene: and disorientation to time or place.  It was noted that the Veteran's psychiatric disability was preventing him from maintaining substantially gainful employment.  

Another private physician indicated that he had been treating the Veteran for a significant mental disorder and he was not able to maintain employment secondary to his condition.   

Thereafter, a statement from the Veteran's wife was received in which she stated that he had severe anxiety and depression.  She indicated that he was isolated and withdrawn, has to be reminded to bathe and put on clean clothes, did not participate in any family gatherings, was very forgetful especially with names and dates, was confused and overwhelmed, and was easily angered.  She indicated that he had become violent with her before and lashed out.  She related that there was no way he could work or get along with people in a work setting without becoming loud and aggressive. 

A statement was also received from T.R., a friend of the Veteran who indicated that the Veteran had depression and anxiety on a daily basis.  He was withdrawn and isolated.  He had withdrawn from family events.  He rarely left the house and did not take proper care of his personal appearance and hygiene.  He was suspicious and distrustful of people.  He avoided crowds and loud noises.  He seemed confused, irrational, and angry.  There was concern for the safety of others when the Veteran became angry.  She related that he had difficulty getting along with people in general and was unable to cope with stress, particularly in a work setting.

Two vocational assessments were performed.  Both concluded that the Veteran was unable to work.  

The regulations for mental disorders are found in 38 C.F.R. §§ 4.125-4.130.  The Board notes that psychiatric disabilities evaluated under Diagnostic Code 9411 and Diagnostic Code 9413 are rated according to the General Rating Formula for Mental Disorders.  

The rating criteria provides a 10 percent rating for occupational and social impairment due to mild or transient symptoms which decreases work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.

A 30 percent rating is provided for 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).

A 50 percent rating is provided for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is provided for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: Suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 

A 100 percent rating is provided for total occupational and social impairment, due to such symptoms as: Gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  38 C.F.R. §§ 4.125-4.130.

The nomenclature used in the rating schedule for mental disorders is based upon the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).  38 C.F.R. § 4.130.  Although certain symptoms must be present in order to establish the diagnosis of PTSD, it is not the symptoms but their effects that determines the level of impairment.  Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002) (quoting 61 Fed. Reg. 52,695, 52,697 (Oct. 8, 1996)).  "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." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013).

When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission.  The rating agency must assign a rating 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). While the extent of social impairment must be considered, an evaluation shall not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126 (b).

One factor for consideration is the GAF score, which was a scale, considered prior to the publication of DSM-5 as reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness."  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)).  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.  See 79 Fed. Reg. 45093 (August 4, 2014).  Under the DSM-IV, a GAF score of 31 to 40 reveals some impairment in reality testing or communications (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF score between 41 and 50 indicates that a veteran has serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). 

In this case, the evidence shows a progression in the level of severity of the Veteran's psychiatric disability, now diagnosed as PTSD with depression.  However, throughout the appeal period and considering the frequency, severity, and duration of the symptoms, the Board finds that symptoms consistent with a 70 percent rating have been demonstrated particularly when considering the Veteran's angry and violent outbursts which have been reported during the appeal period.  Moreover, even though VA examiners indicated an overall level of severity consistent with a 30 percent rating, this rating is not consistent with GAF scores of predominantly 40-45.  While the Veteran's disability has progressed, the Board finds that overall, the Veteran has remained within the 70 percent criteria range, even though he apparently has some difficulty with hygiene and suicidal ideation.  This rating was also endorsed by a private examiner and is also congruent with his cognitive functioning.  The Board is aware that the symptoms listed under the 100 percent evaluation are essentially examples of the type and degree of symptoms for that evaluation, and that the Veteran need not demonstrate those exact symptoms to warrant a 100 percent evaluation.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  However, the Board finds that the preponderance of the evidence, including the clinical findings, shows that the Veteran's PTSD with depression symptoms, including those listed in the criteria and those not listed, more nearly approximate occupational and social impairment with deficiencies in most areas.  

The evidence supports a 70 percent rating from May 28, 2010 for service-connected psychiatric disability.

TDIU

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability.  38 C.F.R. § 4.16(a).  VA interprets the schedular requirements in 38 C.F.R. 4.16(a) to mean that a combined 70 percent rating is only required if no single disability is rated at 60 percent disabling.  See M21-1, Part IV, Subpart ii, Chap. 2, Section F.  Generally, VA does not presume a claim for a TDIU is a claim for increase in all service-connected disabilities.  See M21-1, Part IV, Subpart ii, Chap. 2, Section F, Para h.  

The issue is whether the Veteran's service-connected disabilities precluded him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a "living wage").  See Moore v. Derwinski, 1 Vet. App. 356 (1991).  For the Veteran to prevail in his claim for a TDIU, the record must reflect circumstances, apart from nonservice-connected conditions, that place him in a different position than other veterans who meet the basic schedular criteria.  The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment.  The ultimate question is whether the Veteran, in light of his service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he can find employment.  See Van Hoose v. Brown, 4 Vet. App. 361 (1993).

The Veteran contends that his service-connected disabilities rendered him unable to work.  The Veteran meets the schedular criteria from May 28, 2010.  The Board notes that the clinical records, the lay evidence, and the two vocational assessments establish that the Veteran is totally disabled with particular consideration of his psychiatric disability.  Although a February 2013 VA report indicated that PTSD did not render the Veteran unemployable, the Board finds that this assessment is inconsistent with the other evidence.  Accordingly, a total disability rating based upon individual unemployability due to service-connected disabilities is warranted from May 28, 2010.  

Although the other disabilities on appeal below may potentially affect the overall disability rating for the Veteran, the outcome of those issues will not affect his entitlement to a TDIU and entitlement to a TDIU need not be deferred.








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ORDER

An effective date earlier than May 28, 2010, for the award of service connection for tinnitus is denied.

An effective date earlier than September 12, 2016, for the award of service connection for PTSD is denied.

Service connection for CAD is granted.

Service connection for a right hand cyst is denied.

Service connection for GERD is denied.

A compensable rating for residuals of a right hydrocelectomy is denied.

From May 28, 2010, a 10 percent rating, but not higher, for hypertension is granted, subject to the law and regulations governing the payment of monetary benefits.

A rating in excess of 10 percent for hypertension is denied. 

A rating in excess of 10 percent for bilateral hammertoes is denied.

From May 28, 2010, a 70 percent rating for service-connected psychiatric disability, currently PTSD with depression, is granted, subject to the law and regulations governing the payment of monetary benefits.

A TDIU is granted from May 28, 2010, subject to the law and regulations governing the payment of monetary benefits.


REMAND

Bilateral Hearing Loss

The RO has conceded acoustic trauma occurred for the Veteran during service.  Private medical records show hearing loss, but do not include a Maryland CNC Test.  The Veteran was examined by VA in September 2010, but the results were unreliable.  The examiner stated that the "Veteran should be rescheduled and retested optimally with a different audiologist to elicit valid and reliable results."  As such, the Veteran should be rescheduled for another audiological examination.

OSA

A February 2012 letter of Dr. J.F. initially indicated that the Veteran had OSA.  VA records reflect that in October 2012 and in subsequent records that the Veteran was diagnosed as having OSA.  He also reported having sleep difficulties related to his psychiatric disability and such sleep problems were noted in conjunction with his psychiatric disability on multiple occasions including the most recent VA examination.  The Veteran's representative recently asserted that the Veteran's OSA is secondary to his PTSD with depression.  The Board finds that the Veteran should be examined to determine the etiology of his OSA or any other sleep impairment disability.  A medical opinion should be obtained to include with regard to secondary service connection.

Glaucoma

The Veteran claims that his glaucoma is related to service.  The evidence reflects a diagnosis of glaucoma, but the Veteran has not been afforded a VA examination.  He should be examined and a medical opinion should be obtained.

Bilateral Gynecomastia, Status-Post Subcutaneous Mastectomy

The Veteran previously claimed that he had bilateral gynecomastia, status-post subcutaneous mastectomy on the basis of compensation under 38 U.S.C. § 1151; however, the current claim is for direct service connection.  A medical opinion is not of record in that regard and should be obtained.  

Knees, Shoulders, Cervical Spine, and Rheumatoid Arthritis

The Board notes that the Veteran was recently scheduled for a VA orthopedic examination, but failed to report.  Prior VA examination dated in September 2010 did not provide an etiological nexus between claimed disabilities and service.  However, a subsequent private examiner, Dr. G.B. indicated that the Veteran's arthritis conditions were related to service as he was exposed to the elements for very long periods of time which had taken a toll on his musculoskeletal system.  The Board notes that this opinion is not specific to which joints and does not address the STRs or post-service records.  Thus, even though the Veteran failed to report, a medical opinion should have been obtained, particularly since the STRs noted in January 1976 that the Veteran had aching joints to include the knees and shoulders; the diagnosis was "rule out rheumatoid arthritis."  

Since the claim is being remanded, the Veteran should be afforded another opportunity for an examination and, in any event, a medical opinion should be obtained.  With regard to the right knee, the STRs document right medial meniscus issues in August 1976 and a VA examiner in September 2010 suggested that the Veteran had a right knee condition which preexisted service; thus aggravation of a preexisting condition should also be considered with regard to that disability.

Low Back

The Court issued directives regarding VA examinations in Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016).  Thus, a VA examination must show findings with regard to active motion, passive motion, weight-bearing, and nonweight-bearing.  The Board further notes that in Sharp v. Shulkin, __ Vet. App. __, 2017 WL 3879425 (Sept. 6, 2017), the Court explained that "the VA Clinician's Guide instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from a veteran, including during flare-ups.  The examiners should elicit relevant information as to a veteran's flares with a description of the additional functional loss, if any, a veteran suffers during flares.  The examiner should estimate a veteran's functional loss due to flare-ups based on all the evidence of record-including the lay information or sufficiently explain why the examiner cannot do so.  

In light of the foregoing, the Veteran must be afforded another VA examination for degenerative disc and joint disease of the lumbosacral spine which fully complies with Correia and Sharp.  

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA audiological examination.  The record must be made available to the examiner and the examiner should indicate in his/her report whether or not the record was reviewed.  Any indicated tests should be accomplished.  The examiner should obtain the Veteran's auditory thresholds at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, as well as speech recognition scores based on the Maryland CNC tests.  Whether or not the Veteran attends the examination, the examiner should opine as to whether it is more likely than not, less likely than not, or at least as likely as not, that current hearing loss had its clinical onset during service, within one year of service, or is otherwise related to any in-service disease, event, or injury.  A rationale for any opinion expressed should be provided.

2.  Schedule the Veteran for VA examinations to determine the nature and etiology of any current OSA; glaucoma, bilateral gynecomastia status-post subcutaneous mastectomy, knee disabilities, shoulder disabilities, cervical spine disabilities, and rheumatoid arthritis.  The examiner(s) should review the record prior to examinations.  

With regard to the right knee, the examiner should provide an opinion as to the following questions:

(a) Is there clear and unmistakable (obvious or manifest) evidence that the Veteran had a right knee defect, infirmity, or disorder including Osgood-Schlatter's disease that preexisted his military service; please identify with specificity any evidence that supports this finding.  The examiner is advised that the determination regarding inception should not be based solely on the Veteran's reported history, but should also include consideration of the clinical records and the known characteristics of any diagnosed right knee disorder;

(b) If there is clear and unmistakable evidence that the Veteran had a preexisting right knee defect, infirmity, or disorder at the time of his service entrance, did such right knee disorder increase in severity (worsened) in service;

(c) If the preexisting right knee defect, infirmity, or disorder increased in severity in service, is there clear and unmistakable (obvious or manifest) evidence that the increase in severity during service was due to the natural progress of the right knee disorder; please identify with specificity any evidence that supports this finding;

(d) If the examiner determines that the Veteran did not have a right knee defect, infirmity, or disorder that preexisted service, is it at least as likely as not that the Veteran currently has a right knee disorder that had its onset in service, that arthritis was manifest within a year of service, or that is otherwise etiologically related, to his military service.  The examiner should comment on the inservice findings of meniscus problems dated in August 1976 as well as the complaints of joint pain in January 1986.

With regard to disabilities of the left knee, bilateral shoulders, and cervical spine, and rheumatoid arthritis, the examiner should opine if it is at least as likely as not that the Veteran currently has a left knee, right shoulder, left shoulder, cervical spine, and rheumatoid arthritis disability that had its onset in service, if arthritis was manifest within a year of service, or is otherwise etiologically related, to his military service.  The examiner should comment on the inservice findings of joint pain, rule out rheumatoid arthritis, in January 1986.

With regard to glaucoma, the examiner should opine if it is at least as likely as not that the Veteran currently has this disorder that had its onset in service, or is otherwise etiologically related to the Veteran's military service.  


With regard to bilateral gynecomastia status-post subcutaneous mastectomy, the examiner should opine if it is at least as likely as not that the Veteran currently has this disorder that had its onset in service, or is otherwise etiologically related to the Veteran's military service.  

With regard to OSA, the examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current OSA disability is proximately due to, or the result of, the service-connected psychiatric disability.  The examiner should also provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current OSA is permanently aggravated by the Veteran's service-connected psychiatric disability.  

The examiner(s) should provide a complete rationale for all opinions expressed and conclusions reached.  

3.  Schedule the Veteran for a VA examination to determine the severity of the service-connected degenerative disc and joint disease of the lumbosacral spine disability.  The examiner should review the record prior to examination.  The examination should be performed in accordance with the Disability Benefits Questionnaire (DBQ).  The DBQ should be filled out completely as relevant.  The examiner should specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.  The examiner should obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups from the Veteran himself.  The examiner should elicit relevant information as to the Veteran's flares with a description of the additional functional loss, if any, the Veteran has during flares.  The examiner should estimate the Veteran's functional loss due to flares based on all the evidence of record-including the lay information or sufficiently explain why the examiner cannot do so.  Any opinions expressed by the examiner must be accompanied by a complete rationale.

4.  Review the medical opinions obtained above to ensure that the remand directives have been accomplished.  If all questions posed are not answered or sufficiently answered, the case should be returned to the examiner for completion of the inquiry.  

5.  Readjudicate the claims on appeal in light of all of the evidence of record.  If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).








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This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs