Citation Nr: 1756460	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  13-27 592	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to a disability rating greater than 30 percent for residuals, medial meniscectomy, left knee with traumatic arthritis.

2.  Entitlement to an effective date earlier than December 19, 2011 for the assignment of a 40 percent disability rating for residuals, medial meniscectomy, left knee with traumatic arthritis.

3.  Entitlement to an initial disability rating greater than 30 percent for posttraumatic stress disorder (PTSD) prior to July 16, 2014.

4.  Entitlement to an effective date earlier than August 4, 2010 for the grant of service connection for PTSD.

5.  Entitlement to service connection for bilateral hearing loss.

6.  Entitlement to service connection for tinnitus.

7.  Entitlement to service connection for a right knee disorder.

8.  Entitlement to service connection for diabetes, to include as the result of herbicide exposure.

9.  Entitlement to service connection for ischemic heart disease, to include as the result of herbicide exposure.

10.  Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as the result of exposure to herbicides and/or secondary to a service-connected disability.  

11.  Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as the result of herbicide exposure and/or secondary to a service-connected disability.  

12.  Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as the result of herbicide exposure and/or secondary to a service-connected disability.  

13.  Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as the result of herbicide exposure and/or secondary to a service-connected disability.  

14.  Entitlement to service connection for liver cancer.  

15.  Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for hepatitis C and, if so, whether service connection is warranted.  

16.  Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for cirrhosis of the liver and, if so, whether service connection is warranted. 

17.  Entitlement to an extension of a temporary total rating for a PTSD hospitalization in excess of 21 days.

18.  Entitlement to a total disability rating based on individual unemployability (TDIU).  


REPRESENTATION

Appellant represented by:	Donald A. Donati, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

April Maddox, Counsel


INTRODUCTION

The Veteran had active service from March 1971 to March 1973. Significantly, his service personnel records show that the Veteran served aboard the USS Duluth near the coast of Vietnam from January 1972 to May 1972.

This case comes before the Board of Veterans' Appeals (Board) on appeal of September 2011 and October 2012 ratings decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  

Specifically, the September 2011 rating decision granted service connection for PTSD, assigning a 30 percent disability rating effective August 4, 2010, and found that new and material evidence had not been submitted with regard to previously denied claims of entitlement to service connection for hepatitis C and cirrhosis of the liver.  An October 2012 rating decision increased the Veteran's disability rating for the left knee from 20 to 40 percent disabling effective December 19, 2011 and denied service connection for bilateral hearing loss, tinnitus, a right knee disorder, diabetes, ischemic heart disease, liver cancer, and peripheral neuropathy of the extremities.  Another October 2012 rating decision granted a temporary total rating for the Veteran's PTSD from September 19, 2012 to October 31, 2012 based on the Veteran's participation in a PTSD residential program during that time period.  

Subsequently, by rating decision dated in March 2015, the RO reduced the Veteran's left knee disability rating from 40 percent to 30 percent disabling effective June 1, 2015.  By rating decision dated in June 2015, the RO increased the Veteran's disability rating for PTSD from 30 percent to 100 percent disabling effective July 16, 2014 (the date of a private treatment record).  Because the higher rating for the PTSD did not constitute a full grant of the benefit sought as a higher rating is still possible and the Veteran has not indicated he is satisfied or content with the rating assigned, the granting of the higher rating did not abrogate his pending appeal.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993).   

With regard to the diabetes issue, service connection for diabetes mellitus was initially denied by rating decision dated in June 2006.  However, this decision never became final as the Veteran submitted a timely notice of disagreement as to this decision in December 2006.  As such, the Board has appropriately characterized this issue as noted on the cover page.

With regard to the TDIU claim, the Veteran submitted a formal claim for a TDIU due to his service-connected disabilities in July 2013.  This claim was denied in an April 2015 rating decision, during the course of the appeal from the ratings assigned for such disabilities.  Although the Veteran did not expressly appeal this determination, the record shows that he was unemployed as early as October 2005 due, in part, to his psychiatric disability.  When evidence of unemployability is submitted during the course of an appeal from an assigned rating, a claim for entitlement to a TDIU will be considered "part and parcel" of the claim for benefits for the underlying disability.  In such cases, a request for a TDIU is an attempt to obtain an appropriate disability rating, either as part of the initial adjudication of a claim or as part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  As such, the Board has taken jurisdiction over the Veteran's TDIU claim.

The Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing in August 2016.  A transcript of this proceeding has been associated with the claims file.

The issues of entitlement to an increased rating for left knee disability and entitlement to service connection for ischemic heart disease, peripheral neuropathy of the extremities, and cirrhosis of the liver are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Prior to the promulgation of a decision in the appeal, during the August 2016 Board hearing, the Veteran withdrew his appeal concerning the issue regarding an earlier effective date for the grant of service connection for PTSD; the issues regarding service connection for bilateral hearing loss, tinnitus, a right knee disability, and liver cancer; and the issue concerning an extension of a temporary total rating for a PTSD hospitalization in excess of 21 days.

2.  An unappealed September 2008 rating decision continued a 20 percent disability rating for the Veteran's left knee disability. 

3.  After the September 2008 rating decision, the first communication from the Veteran regarding a claim for an increased rating for his left knee is dated December 19, 2011.  

4.  In a final decision issued in September 2007, the RO denied the Veteran's claim of entitlement to service connection for hepatitis C and cirrhosis of the liver.

5.  Evidence added to the record since the final September 2007 denial is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for hepatitis C. 

6.  Evidence added to the record since the final September 2007 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for cirrhosis of the liver.

7.  The Veteran served aboard the USS Duluth near the coast of Vietnam from January 1972 to May 1972, and VA has acknowledged this vessel as being among those ships exposed to herbicide as part of activities conducted during the Vietnam War.

8.  The medical evidence establishes that the Veteran was diagnosed with diabetes mellitus in approximately January 2002.

9.  The Veteran's diabetes mellitus is presumed related to his exposure to herbicide agents while serving aboard the USS Duluth.

10.  Since the grant of service connection, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in areas such as work, thinking and mood due to such symptoms as: depressed mood; anxiety; suspiciousness; chronic sleep impairment; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances including work or work like setting; and neglect of personal appearance and hygiene, without more severe manifestations that more nearly approximate total occupational and social impairment.

11.  Throughout the entire appellate period beginning August 4, 2010, the evidence has shown that the Veteran has been unable to secure and follow substantially gainful employment due to his service-connected PTSD.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal concerning the issue regarding an earlier effective date for the grant of service connection for PTSD; the issues regarding service connection for bilateral hearing loss, tinnitus, a right knee disability, and liver cancer; and the issue concerning an extension of a temporary total rating for a PTSD hospitalization in excess of 21 days by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2014); 38 C.F.R. §§ 20.202, 20.204 (2017).

2.  An effective date earlier than December 19, 2011, for the assignment of a 40 percent disability rating for left knee disability is legally precluded.  38 U.S.C. § 7105 (2014); 38 C.F.R. § 3.105(a) (2017); Rudd v. Nicholson, 20 Vet. App. 296 (2006).

3.  The September 2007 rating decision that denied service connection for hepatitis C and cirrhosis of the liver is final.  38 U.S.C. § 7105 (2002) [(2014)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007) [(2017)].

4.  New and material evidence has not been received to reopen the claim of entitlement to service connection for hepatitis C.  38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156(a) (2017).

5.  New and material evidence has been received to reopen the claim of entitlement to service connection for cirrhosis of the liver.  38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156(a) (2017).

6.  The criteria for service connection for diabetes mellitus, type II, as presumed related to active service, are met.  38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 5107(b) (2014); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303, 3.307, 3.309 (2017).

7.  The criteria for an initial disability rating disability of 70 percent, and no higher, for PTSD have been met.  38 U.S.C. § 1155, 5107 (2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 9411 (2017).

8.  Throughout the entire appellate period beginning August 4, 2010, the criteria for a TDIU have been met.  38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25, 4.26 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Notice and Assistance

With respect to the claims being decided, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).
 
With regard to the PTSD issue, the Board observes that the Veteran has appealed the initial rating assigned for  PTSD from the original grant of service connection.  No further notice is required for such downstream issues.  VAOPGCPREC 8-2003 (2003), 69 Fed. Reg. 25180 (2004).  The statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, the notice has served its purpose, and its application is no longer required because the claim has already been substantiated.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran's claim for service connection for PTSD was granted and an initial rating was assigned in the September 2011 rating decision on appeal.  Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C. § 5103(a) notice is required as the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

Additionally, the Veteran was provided VA examinations in August 2011 and May 2013 to determine the nature and severity of PTSD.  Neither the Veteran nor representative has alleged that the VA examinations are inadequate for rating purposes.  The Board finds that the examinations are adequate in order to rate the Veteran's service-connected PTSD as they include interviews with the Veteran, a review of the record, and full examinations, addressing the relevant rating criteria.  Moreover, neither the Veteran nor representative has alleged that the disability has worsened in severity since the May 2013 VA examination.  Rather, they argue that the evidence shows that the Veteran's disability has been more severe than the currently assigned rating for the duration of the appeal period.  Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (passage of time alone, without an allegation of worsening, does not warrant a new examination).

With regard to the hepatitis C issue, the Board notes that the Veteran has not been provided with a VA examination in connection with this claim; however, the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations include clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who attempts to reopen a previously denied claim.  See 38 C.F.R. § 3.159(1), (2), and (3).  Such assistance includes obtaining service records, records in the custody of a Federal agency, and private records adequately identified by the claimant, but, prior to reopening a claim, there is no duty to obtain a VA medical examination or opinion.  As the Veteran's claim for service connection for hepatitis C is not reopened herein, there is no obligation on the part of VA to provide a medical examination or opinion in connection with such claim.

With regard to the PTSD and hepatitis C issues, the Veteran's VA treatment records and records from the Social Security Administration have been obtained and considered.  The Veteran has not identified any additional, outstanding records necessary to decide the pending appeal.  Therefore, the Board finds that VA's duty to assist with respect to obtaining records has been fulfilled. 
II. Withdrawn Issues

Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202.  Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. 

During the August 2016 Board hearing, the Veteran indicated that he wished to withdraw his appeal concerning the issue regarding an earlier effective date for the grant of service connection for PTSD; the issues regarding service connection for bilateral hearing loss, tinnitus, a right knee disability, and liver cancer; and the issue concerning an extension of a temporary total rating for a PTSD hospitalization in excess of 21 days.  Hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal with regard to those issues and it is dismissed.

III.  Earlier Effective Date Analysis

Generally, the effective date of the award of an increase in compensation is either the date of claim or the dated entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1).  The exception to the rule allows for the earliest date as of which it was factually ascertainable that an increase in disability had occurred if the claim was received within 1 year from such date; otherwise, the effective date is the date of receipt of the claim.  38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).

By way of history, by rating decision dated in February 1974 the RO granted service connection for medial meniscectomy, left knee and assigned an initial 10 percent disability rating effective March 27, 1973, the day after the Veteran's separation from military service.  By rating decision dated in February 1977, the RO increased the Veteran's disability rating for the left knee to 20 percent disabling effective November 19, 1976.  The 20 percent rating was continued by rating decisions dated in January 2000, September 2007, and September 2008.  At the time of the September 2008 rating decision, the Veteran was informed of that decision and his appellate rights in a September 2008 letter.  He did not appeal that determination.  On December 19, 2011 the Veteran raised a claim for an increased rating for his left knee disability.  As above, by rating decision dated in October 2012, the RO increased the Veteran's disability rating for the left knee from 20 to 40 percent disabling effective December 19, 2011, the date of the most recent claim for increase.

A claim for an earlier effective date must generally come before the Board as a result of a timely appeal from a decision granting service connection or an increased rating, because a Veteran cannot make a freestanding claim for an earlier effective date absent a claim of clear and unmistakable error (CUE) in a prior rating decision.  Rudd v. Nicholson, 20 Vet. App. 296 (2006).  

A review of the claims file is negative for any correspondence dated between the September 2008 rating decision and the December 19, 2011 claim and the record does not reflect that the Veteran filed a claim for increase, formal or informal, prior to December 19, 2011.  As the September 2008 rating decision which continued a 20 percent disability rating for the Veteran's left knee is final and the Veteran has not argued that there was CUE in that decision, a claim for an effective date earlier than December 19, 2011 for the assignment of a 20 percent disability rating for the Veteran's left knee disability must be denied.  See Rudd, 20 Vet. App. at 300; Sabonis v. Brown, 6 Vet. App. 426 (1994).   

IV. New and Material Evidence Analysis

With regard to the hepatitis C issue, the Veteran's original claim of entitlement to service connection for hepatitis C was denied by a June 2006 rating decision.  Specifically, the RO determined that, there while there was evidence of a current diagnosis of hepatitis C, there were neither indications of hepatitis C in service nor was there a nexus between the Veteran's current hepatitis C and his military service.  Significantly, it was noted that while the Veteran underwent surgery on his left knee during his military service, there was no evidence that the Veteran received a blood transfusion at that time or was exposed to infected blood products.  This denial was continued by rating decision dated in September 2007 on the same basis.

With regard to the cirrhosis of the liver issue, the Veteran's original claim of entitlement to service connection for cirrhosis of the liver was denied by a June 2006 rating decision.  Specifically, the RO determined that, there while there was evidence of a current diagnosis of cirrhosis of the liver, there were no indications of a liver disorder in service nor a nexus between the Veteran's current cirrhosis of the liver and his military service.  Significantly, it was noted that the Veteran had denied the use of alcohol except for an occasional social drink while he was in the military service.  This denial was continued by rating decision dated in September 2007 on the same basis.  Significantly, the September 2007 rating decision noted that the Veteran's liver disease was secondary to his hepatitis C.
      
Although the RO provided notice of the September 2007 denial, the Veteran did not initiate an appeal.  Therefore, the RO's decision of September 2007 is final.  38 U.S.C. § 7105 (2002) [(2014)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007) [(2017)].  In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  In the instant case, such regulation is applicable as no evidence pertaining to the Veteran's claims for service connection for hepatitis C/cirrhosis of the liver was received prior to the expiration of the appeal period stemming from the September 2007 rating decision.  See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999).  

Thereafter, in September 2010, the Veteran requested to reopen his previously denied claims of entitlement to service connection for hepatitis C and cirrhosis of the liver. 

Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority.  38 C.F.R. § 3.104(a).  The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period.  38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a).

Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c).  The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

The Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion.  Id.   

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

With regard to the hepatitis C issue, at the time of the September 2007 rating decision, the evidence of record included the Veteran's service treatment records and post-service treatment records showing a diagnosis of hepatitis C as early as June 2002.  As above, service treatment records and post-service records are negative for indications of hepatitis C, to include evidence that the Veteran received a blood transfusion at that time or was exposed to infected blood products.  Relevant evidence received since the September 2007 rating decision includes VA treatment records dated through May 2017 and private treatment records dated through June 2017.  These records show continued treatment for hepatitis C but do not discuss the etiology of the Veteran's hepatitis C.

In this case, the Board finds that the evidence received since the last final denial in September 2007 is new in that it was not previously of record.  However, it is cumulative or redundant of the other evidence of record and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for hepatitis C.  Specifically, while the newly received treatment records show continued treatment for hepatitis C, they do not discuss the etiology of the Veteran's hepatitis C.  Such is duplicative of the evidence previously of record in that there is still no evidence of either an indication of hepatitis C in service or a nexus between the Veteran's current hepatitis C and his military service.  Therefore, the Board must conclude that the evidence added to the record since the prior final denial in September 2007 does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for hepatitis C.  As such, the Board finds that the evidence received since September 2007 is not new and material and the requirements to reopen the claim of entitlement to service connection for hepatitis C have not been met. 

With regard to the cirrhosis of the liver issue, at the time of the September 2007 rating decision, the evidence of record included the Veteran's service treatment records and post-service treatment records showing a diagnosis of cirrhosis of the liver "without mention of alcohol" as early as December 2005 and also showing that the Veteran underwent a liver transplant in April 2006.  Relevant evidence received since the September 2007 rating decision includes the August 2016 Board hearing transcript wherein the Veteran's representative argued that the Veteran's PTSD led to alcoholism which, in turn, resulted in cirrhosis of the liver.  Also, in a May 2015 statement, Dr. W.B.L. noted that the Veteran's poor health was related to his long history of drinking which was likely the result of an attempt to self-medicate his PTSD.  

The Board finds that the evidence received since the September 2007 rating decision is new and material.  Specifically, since such decision, additional evidence addressing the bases of the prior final denials has been received, to include evidence argument as well as medication opinion relating the Veteran's residuals of a liver transplant to alcoholism due to his service-connected PTSD.  The prior denial in September 2007 was based upon a finding that the Veteran's liver disability was due to his nonservice-connected hepatitis C.  The evidence received since such time indicates that residuals of the Veteran's liver transplant may be related to alcoholism caused by his service-connected PTSD.  Therefore, the Board finds that the evidence added to the record since the final September 2007 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for residuals of a liver transplant.  Consequently, the Board finds that new and material evidence has been received to reopen the claim for service connection for cirrhosis of the liver.

V. Service Connection Analysis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304.  See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as diabetes mellitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.  

Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service.  See 38 C.F.R. § 3.303(b).  The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The governing law provides that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service."  38 U.S.C. § 1116(f).  

VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for several disorders, to include diabetes mellitus.  38 C.F.R. § 3.309(e); See also 75 Fed. Reg. 53,202 (Aug. 31, 2010).
 
"Service in Vietnam" includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to the country of Vietnam itself.  38 C.F.R. § § 3.307(a)(6)(iii); 3.313.  However, the VA General Counsel  has determined that the regulatory definition, which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served there, requires that an individual actually have been present within the land boundaries of the Republic of Vietnam.  See VAOPGCPREC 27-97.  The United States Court of Appeals for the Federal Circuit  (Federal Circuit) held that § 3.307(a)(6)(iii) was reasonably interpreted by VA as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to be entitled to statutory presumptions of herbicide exposure and service connection.  Haas v. Peake, 525 F.3d 1168 (2008), cert. denied, 129 S.Ct. 1002, 173 L.Ed 2d 315 (2009). 

Accordingly, as the law now stands, service in waters off the coast of Vietnam does not qualify as service "in Vietnam" for purposes of presumptive service connection on the basis of exposure to herbicides under 38 U.S.C. § 1116  and 38 C.F.R. §§ 3.307, 3.309.

VA maintains a list of U.S. Navy and Coast Guard ships associated with military service in Vietnam and possible exposure to Agent Orange based on military records which is found on VA's website.  The vessels are placed in five categories of ships that operated on the waters of Vietnam.  A ship is placed on this list when documentary evidence shows that it fits into a particular category.  The required evidence can come from an official ship history, deck logs, cruise books, Captain's letters, or similar documents.  A specific ship may be listed in more than one category, based on its activities.  Evidence requirements for the presumption of Agent Orange exposure may vary depending on what dates the Veteran was aboard and what ship activity occurred on those dates.  Ship categories include:   (1) ships operating primarily or exclusively on Vietnam's inland waterways, (2) ships operating temporarily on Vietnam's inland waterways, (3) ships that docked to shore or pier in Vietnam, (4) ships operating on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore, and (5) ships operating on Vietnam's close coastal waters for extended periods with evidence that smaller craft from the ship regularly delivered supplies or troops ashore.

A review of the list shows that USS Duluth (LPD-6) made numerous dockings at Da Nang, as well as transporting troops and supplies to Chu Lai, Vung Tau, and Quang Tri, from May 1967 to August 1972.  USS Duluth also participated in evacuation of Saigon during April 1975 by sending rescue boats ashore at Vung Tau.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In this case, the Veteran's private treatment records show a diagnosis of diabetes mellitus as early as January 2002.  The record also shows that the Veteran served about USS Duluth between January 1972 and May 1972.  Finally, the record shows that USS Duluth was likely exposed to numerous dockings at Da Nang, as well as transporting troops and supplies to Chu Lai, Vung Tau, and Quang Tri, from May 1967 to August 1972, to include while the Veteran was stationed aboard the ship.  In light of VA's inclusion of the USS Duluth on the list of U.S. Navy and Coast Guard ships associated with military service in Vietnam and possible exposure to Agent Orange, the Board acknowledges this Veteran as having been exposed to herbicides during service, and service connection for diabetes mellitus is warranted on a presumptive basis.

VI. Increased Rating Analysis

Disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities.  38 C.F.R. Part 4 .  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 

In rating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Separate ratings can be assigned for separate periods of time, based on the facts found.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App.  505 (2007).  A claim for increased rating remains in controversy when less than the maximum available benefit is awarded AB v. Brown, 6 Vet. App. 35 (1993).  Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.  

In a decision, the Board shall consider all information and lay and medical evidence of record.  38 U.S.C. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall resolve reasonable doubt in favor of the claimant.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

The Veteran's PTSD is rated under DC 9411.  Pursuant to DC 9411, a 30 percent rating is assigned when there is 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 assigned when there is 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 warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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 work-like setting); and the inability to establish and maintain effective relationships. 

A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. § 4.71a, Diagnostic Code 9411, General Rating Formula for Mental Disorders.

The nomenclature employed in the portion of VA's Rating Schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association  (DSM-IV).  38 C.F.R. § 4.130.  DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between 0 and 100, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness.  Higher scores correspond to better functioning of the individual. 

VA has recently changed its regulations, and now requires the use of DSM-5, effective August 4, 2014.  Among the changes, DSM-5 eliminates the use of the GAF score in the evaluation of psychiatric disorders.  The change was made applicable to cases certified to the Board on or after August 4, 2014, and is not applicable to cases certified to the Board prior to that date.  As this case was certified to the Board after August 4, 2014, GAF scores will not be used in the evaluation of the psychiatric disorder.  

Symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002). 

According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered.  In addition, the rating must be 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.  Further, when rating the level of disability from a mental disorder, the extent of social impairment is considered, but a rating cannot be assigned solely on the basis of social impairment.  38 C.F.R. § 4.126.

Evidence relevant to the current level of severity of PTSD includes VA examination reports dated in August 2011 and May 2013.  During the August 2011 VA examination, the Veteran reported that he had been married three times and divorced twice.  He had one adult son, which he would see once per month, and had been married to his third wife for the past seven years with no violence or separations.  He had some friends that he saw occasionally and no hobbies.  He last worked in 2005 but retired due to a liver transplant/hepatitis C.  

On mental status examination, he was clean, neatly groomed, and appropriately/casually dressed.  His speech was spontaneous, clear, and coherent and he had a cooperative/attentive attitude toward the examiner.  His affect was appropriate and his mood was good.  The Veteran was easily distracted and had a short attention span.  He was intact to person, time, and place.  Thought process was described as "mild circumstantiality" and there were no delusions.  The Veteran understood the outcome of his behavior and he was of average intelligence.  With regard to insight, it was noted that the Veteran understood that he had a problem. There was sleep impairment following his stroke two weeks earlier, but this had improved.  There were no hallucinations, inappropriate behavior, and/or obsessive/ritualistic behavior.  There were also no homicidal/suicidal thoughts.  Impulse control was good and there were no episodes of violence.  The Veteran was able to maintain minimum personal hygiene and there were no problems with activities of daily living.  Memory was normal.

The examiner diagnosed PTSD and found that the Veteran's PTSD symptoms were transient or mild and decreased work efficiency and ability to perform occupational tasks only during periods of significant stress.  Specifically, it was noted that the Veteran did not get along well with co-workers, resulting in poor work relationships.  Overall, however, the Veteran appeared to report more social than occupational impairment and only stopped working due to his hepatitis C and liver transplant.  The examiner indicated that, at the time of the examination, the Veteran's PTSD symptoms were mild but were likely more severe at the time of his discharge from service.  

During the May 2013 VA examination, the examiner continued a diagnosis of PTSD.  The examiner found that the Veteran's PTSD resulted in 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 medication.  Significantly, the examiner opined that the Veteran's psychiatric condition, alone, did not impair his ability to engage in physical and sedentary forms of employment.  He continued to stay married to his third wife of 12 years but they had been separated for about two years.  He reportedly had three adult sons and did not have much contact with his sons but talks to them by phone occasionally.  He lived alone in rented trailer and continued to be unemployed.  He had no hobbies.

On mental status examination the Veteran was casually dressed and appropriately groomed.  He appeared to be slightly overweight.  He was alert and oriented to person, place, date, and situation.  He described his mood as stable.  His affect was somewhat restricted.  He denied suicidal/homicidal ideation.  He occasionally experienced auditory/visual hallucinations and will occasionally think he sees shadows of something or bugs that are not there.  There was no overt evidence of psychosis.  His speech was appropriate and he maintained good eye contact.  There was no tangentiality circumstantiality flight of ideas or loosening of associations to his speech.  His thought processes were linear and logical.  His insight and judgment were intact and there was no overt evidence of any cognitive deficits.

The examiner found that the Veteran's PTSD resulted in the following symptoms:  depressed mood; anxiety; suspiciousness; chronic sleep impairment; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances including work or work like setting; and neglect of personal appearance and hygiene.  He struggled with initial and middle insomnia and averaged two to three hours of sleep night.  Nightmares with combat content occurred on a nightly basis.  He struggled with depression and had felt depressed for more days than not for over two years.  He has anhedonia but denied having suicidal thoughts.  He experiences occasional crying spells and struggled with feelings of guilt.  He struggled with low self-esteem.  He experienced feelings of hopelessness and helplessness and had low energy and low motivation.  His appetite was pretty good and he had no recent change in weight that he was aware of.  

During the August 2016 Board hearing, the Veteran reported that he has been hospitalized for his PTSD on several occasions since 2012.  He indicated that he had not lived with his wife for the past five years.  The Veteran's attorney argued that the Veteran had met the criteria for a 70 percent disability rating since he stopped working in 2005.  

Also of record are VA treatment reports dated through May 2017 and private treatment records dated through June 2017.  A July 2014 private psychological evaluation from Dr. W.B.L. shows that Dr. W.B.L. began treating the Veteran on July 16, 2014.  Notably, at that time, the Veteran continued to be unemployed and separated from his wife but was, at that time, living with his sister.  Significantly, Dr. W.B.L. found that the Veteran's judgment was impaired due to his elevated anxiety level.  Dr. W.B.L. also found that the Veteran a deficiency in his thought process as he struggled to make decisions and was fearful of being around people due to fear of infection and his safety in general.

Significantly, in a May 2015 psychological evaluation from Dr. W.B.L., Dr. W.B.L. noted that he had reviewed the claims file and opined that the Veteran had been able to work in the past but was unable to sustain relationships.  Dr. W.B.L. wrote that the Veteran was unable to work due to medical complications but was also unable to work due to his severely elevated anxiety level paranoia and fear of becoming ill once again due to general poor health.  Dr. W.B.L. noted that the Veteran's poor health was related to his long history of drinking which was likely the result of an attempt to self-medicate his PTSD.  It was noted that the Veteran had been totally disabled since 2005 when he began receiving Social Security benefits.  Dr. W.B.L. wrote that the Veteran had been unable to consistently establish a stable living situation for himself which was reflected by his being married three times, having no relationship with his children, and currently living with his sister in a low-demand environment where he basically avoids people and takes care of his daily needs.  Based on his assessment of the medical records, Dr. W.B.L. opined that it was more likely than not that the Veteran met the criteria for a 70 percent disabling rating since 2005 and currently met the criteria for a 100 percent disability due to the "stress of his medical condition which has intensified his difficulties with anxiety and depression."

After a careful review of the objective medical evidence, the Board finds that the evidence supports a grant of an initial 70 percent disability evaluation for the Veteran's PTSD, effective from the date of the grant of service connection.  The evidence clearly shows the Veteran to be severely disabled as a result of his service-connected PTSD.  He was shown to have occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking and mood due to symptoms including: depressed mood; anxiety; suspiciousness; chronic sleep impairment; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances including work or work like setting; and neglect of personal appearance and hygiene.

Although a 70 percent evaluation has been granted for PTSD prior to July 16, 2014, the Board finds that the evidence does not show the symptomatology required for a 100 percent rating under the rating schedule prior to that date.  Prior to July 16, 2014, the Veteran did not manifest gross impairment of thought processes or communication, or delusions, which are listed as examples of the type, extent, and severity of symptoms warranting a 100 percent schedular rating.  There is no lay or medical description of significant impairment of thought process.  Prior to July 16, 2014, the Veteran's mental status evaluations described no thought content abnormalities.  His communication impairment was limited to restricted affect.  Overall, the Board finds that, prior to July 16, 2014, the Veteran did not manifest gross impairment of thought processes or communication, or "persistent delusions." 

Another factor listed as an example supporting a 100 percent rating is grossly inappropriate behavior, or being a persistent danger of hurting self or others.  Significantly, the August 2011 and May 2013 VA examinations are negative for episodes of violence.  He has demonstrated the capability for self-care.  There have been no reported episodes of agitation or disorientation wherein he was a threat to himself.  Overall, the Board finds that the Veteran has not manifested a "persistent" threat to himself or others as contemplated by the criteria for a 100 percent rating under DC 9411.

While the Veteran was found to neglect his personal appearance and hygiene during the May 2013 VA examination, a 70 percent evaluation contemplates neglect of personal appearance and hygiene.  With respect to orientation, there is no lay or medical evidence of disorientation to time or place to support a 100 percent rating under DC 9411.  While the Veteran reported that he had been experiencing problems with his memory during the August 2011 VA examination,  there is no lay or medical evidence that the Veteran's psychiatric status is or has been so severe at any point pertinent to this appeal that he has demonstrated memory loss for names of close relatives, his occupational status or his own name which is another example supporting a 100 percent rating under DC 9411.

As required by Mauerhan, the Board has looked at all the factors and evidence identified above to determine whether the Veteran has met or more closely approximated the criteria for a maximum 100 percent rating prior to July 16, 2014.  However, when considering the overall evaluation of the examples which may support the 100 percent rating, the frequency, duration and severity of symptoms, the Veteran's capacity for adjustment, and the examiner's assessments of the Veteran's overall psychological, social and occupational functioning, the Board must conclude that the Veteran's PTSD has not met or more closely approximated the criteria for a 100 percent rating at any relevant time. 

In this respect, the Veteran, even at his worst, can efficiently converse with the VA examiners, and can generally manage his daily activities on his own.  He is not psychotic or out of touch with reality.  Overall, his PTSD is not shown to manifest the type, extent and severity of symptoms demonstrating "total occupational and social impairment" within the meaning of the rating schedule at any point pertinent to this appeal. 

In so holding, the Board has generally found the statements and testimony of the Veteran to be truthful and credible evidence in support of this claim, which has been relied upon in awarding further compensation.  However, even when taking into account this testimony, the Board finds that the criteria for a rating greater than 70 percent have not been met prior to July 16, 2014.  To the extent that the descriptions provided by the Veteran can be construed as supporting a higher rating still, the Board places greater probative weight to the clinical findings of the VA physicians who have greater expertise and training than the Veteran in evaluating the extent and severity of a psychiatric disability.  There is no doubt of material fact to be resolved in his favor.  38 U.S.C. § 5107(b).  As such, an initial rating of 70 percent, and no higher, is warranted prior to July 16, 2014.  

VII. TDIU Analysis

TDIU ratings for compensation may be assigned, where the scheduler 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.  38 C.F.R. §§ 3.340 and 4.16(a).  If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).

The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain and retain employment.  The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).  Factors to be considered are the veteran's employment history and his educational and vocational attainment.  Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991).  Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment.  38 C.F.R. § 4.16(a).  VA regulations define marginal employment in two ways: (1) employment that produces income that does not exceed the poverty threshold for one person established by the U.S. Department of Commerce, Bureau of the Census, or (2) employment that produces income above the poverty threshold but is in a protected environment such as a family business or sheltered workshop.

As above, the Veteran submitted a formal claim for a TDIU due to his service-connected disabilities in July 2013.  This claim was denied in an April 2015 rating decision.  Although the Veteran did not expressly appeal this determination, the record shows that he was unemployed as early as October 2005 due, at least in part, to his service-connected psychiatric disability.  As such, the Board has taken jurisdiction over the Veteran's TDIU claim as part of the August 2010 claim for service connection for PTSD pursuant to Rice.  

In June 2015, the RO granted a total (100 percent rating) for the Veteran's PTSD effective July 16, 2014.  While the Veteran has been awarded a 100 percent disability rating since July 16, 2014, the United States Court of Appeals for Veterans Claims (Court) has held that an award of a 100 percent disability rating does not necessarily render moot a claim of entitlement to a TDIU.  See Bradley v. Peake, 22 Vet. App. 280 (2008).  In Bradley, the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level), when considered together with another disability separately rated at 60 percent or more, could warrant special monthly compensation under 38 U.S.C.A. § 1114(s).  Thus, the Court reasoned, it might benefit the Veteran to retain or obtain the TDIU rating even where a 100 percent schedular rating has also been granted.  Bradley, at 293-94.  Because of this holding, VA's General Counsel withdrew VAOPGCPREC 6-99, which was contrary to the holding of Bradley.  See 75 Fed. Reg. 11229-04 (March 10, 2010).  Here, however, the award of a 100 percent schedular rating for PTSD beginning July 16, 2014 clearly renders moot any claim for a TDIU due solely to PTSD beginning July 16, 2014.  As the Veteran has been awarded a 100 percent disability rating for his PTSD beginning July 16, 2014, the issue regarding entitlement to a TDIU due solely to PTSD beginning July 16, 2014 is moot.

With regard to the issue of entitlement to a TDIU prior to July 16, 2014, the evidence shows that the Veteran stopped working prior to 2014 (approximately October 2005) and the appeal stems from an August 2010 claim for service connection.  As such, the Board has jurisdiction of the issue of entitlement to a TDIU prior to July 16, 2014.

As an initial matter, the Board notes that, based on the grant of a 70 percent rating for PTSD pursuant to this Board decision, the Veteran's total combined rating as of August 4, 2010-the date of the Veteran's claim for service connection for PTSD that is currently on appeal-was 70 percent.  Thus, the Veteran met the requirements of 38 C.F.R. § 4.16 (a) effective August 4, 2010.  As such, the remaining question is whether the Veteran's service-connected disabilities render him unable to obtain and maintain substantially gainful employment as of August 4, 2010.

As above, in a May 2015 psychological evaluation from Dr. W.B.L. wrote that the Veteran was unable to work due to medical complications but was also unable to work due to his severely elevated anxiety level paranoia and fear of becoming ill once again due to general poor health beginning in 2005.  Dr. W.B.L. noted that the Veteran's poor health was related to his long history of drinking which was likely the result of an attempt to self-medicate his PTSD.  It was noted that the Veteran had been totally disabled since 2005 when he began receiving Social Security benefits.  

Therefore, the Board finds that a TDIU is warranted effective August 4, 2010, the date of the Veteran's claim for service connection for PTSD, as this is the earliest date on which the evidence demonstrates that the Veteran met the requirements of 4.16(a) and was unable to secure or maintain substantially gainful employment.  In short, the Board has resolved reasonable doubt in the Veteran's favor and finds that a TDIU is granted from August 4, 2010.


ORDER

The appeal concerning the issue regarding an earlier effective date for the grant of service connection for PTSD; the issues regarding service connection for bilateral hearing loss, tinnitus, a right knee disability, and liver cancer; and the issue concerning an extension of a temporary total rating for a PTSD hospitalization in excess of 21 days is dismissed.

An effective date earlier December 19, 2011 for the assignment of a 40 percent (now 30 percent) disability rating for residuals, medial meniscectomy, left knee with traumatic arthritis is denied.

New and material evidence not having been received, the application to reopen a claim of entitlement to service connection for hepatitis C is denied.

New and material evidence having been received, the claim of entitlement to service connection for cirrhosis of the liver is reopened.

Service connection for diabetes mellitus, type II is granted.

An initial disability rating of 70 percent, and no higher, for PTSD prior to July 16, 2014 is granted, subject to statutory and regulatory provisions governing the payment of monetary benefits.

An effective date of August 4, 2010, and no earlier, for the grant of a TDIU is granted.


REMAND

With regard to the left knee increased rating issue, the left knee was most recently examined in April 2013.  Significantly, the April 2013 VA examination report concerning the left knee only shows range of motion findings for the left knee and does not indicate whether the findings were on both active and passive motion and/or in weight-bearing and nonweight-bearing.  The Board observes that a new precedential opinion that directly affects this case was issued by the United States Court of Appeals for Veterans Claims (Court).  In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities.  The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint."  The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59.  Unfortunately, the April 2013 VA examination report does not comply with Correia.  Accordingly, the Veteran must be afforded a new VA examination to correct all of the deficiencies noted above.  

With regard to the ischemic heart disease issue, as above, the Board has found that the Veteran was likely exposed to herbicides during his service on USS Duluth between January 1972 and May 1972.  Furthermore, presumptive service connection is warranted for ischemic heart disease if a veteran was exposed to an herbicide agent during active service.  38 C.F.R. § 3.309(e); See also 75 Fed. Reg. 53,202 (Aug. 31, 2010).  However, it is unclear whether the Veteran actually has a diagnosis of ischemic heart disease.  Significantly, VA treatment records show that the Veteran has been treated for heart issues, including atrial fibrillation.  VA treatment records also show an impression of "ischemic small vessel disease in the white matter" in a March 2013.  The Veteran has not yet been afforded a VA examination with regard to his claimed ischemic heart disease.  On remand, the Veteran should be afforded a VA heart examination to determine whether he has a heart disability which is related to his service, to include his presumed exposure to herbicides.

With regard to the peripheral neuropathy issues, as above, the Board has granted service connection for diabetes and peripheral neuropathy is a known complication of diabetes.  However, it is unclear whether the Veteran actually has a diagnosis of peripheral neuropathy of the extremities.  Significantly, an October 2012 VA treatment record shows an impression of diabetic neuropathy.  Furthermore, a March 2013 VA treatment record notes a history of peripheral neuropathy but also indicates that there were no objective signs of peripheral neuropathy on examination.  The Veteran has not yet been afforded a VA examination with regard to his claimed peripheral neuropathy of the extremities.  On remand, the Veteran should be afforded a VA peripheral neuropathy examination to determine whether he has peripheral neuropathy of the extremities which is related to his military service, to include as secondary to his newly service-connected diabetes.

With regard to the cirrhosis of the liver issue, VA treatment records show an impression of cirrhosis of the liver "without mention of alcohol" as early as December 2005 and the Veteran underwent a liver transplant in April 2006.  During the August 2016 Board hearing, the Veteran's representative argued that the Veteran's PTSD led to alcoholism which, in turn, resulted in cirrhosis of the liver.  As above, in a May 2015 statement, Dr. W.B.L. noted that the Veteran's poor health was related to his long history of drinking which was likely the result of an attempt to self-medicate his PTSD.  The Veteran has not yet been afforded a VA examination with regard to his claimed cirrhosis of the liver.  On remand, the Veteran should be afforded a VA liver examination to determine whether the Veteran currently suffers from residuals of his liver transplant and, if so, whether a liver disability is related to his service, to include as secondary to his service-connected PTSD.

Accordingly, the case is REMANDED for the following action:

1. Obtain all VA treatment records dated since May 2017.

2. Schedule the Veteran for an appropriate VA examination for evaluation of his service-connected left knee disability. 

3. Schedule the Veteran for an appropriate VA examination to determine the current nature and etiology of his claimed ischemic heart disease.  

The examiner should identify all heart disorders found to be present, including the claimed ischemic heart disease. With respect to each disorder diagnosed that is not ischemic heart disease, the examiner should offer an opinion as to whether it is at least as likely as not related to the Veteran's service, to include his presumed herbicide exposure.

The examiner should specifically address VA treatment records showing that the Veteran has been treated for heart issues, including atrial fibrillation as well as the March 2013 VA treatment record showing an impression of "ischemic small vessel disease in the white matter."   A complete rationale should be given for all opinions and conclusions expressed. 

4. Schedule the Veteran for an appropriate VA examination to determine the current nature and etiology of his claimed peripheral neuropathy of the extremities.

The examiner should identify all neurological disorders found to be present, including peripheral neuropathy.  With respect to each disorder diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not related to the Veteran's service, to include his presumed herbicide exposure.

The examiner should also address whether peripheral neuropathy is at least as likely as not due to or caused by and/or aggravated by the newly service-connected diabetes mellitus.  

The examiner should specifically address the October 2012 VA treatment record showing an impression of diabetic neuropathy as well as the March 2013 VA treatment record noting a history of peripheral neuropathy but also indicating that there were no objective signs of peripheral neuropathy on examination.  A complete rationale should be given for all opinions and conclusions expressed. 

5. Schedule the Veteran for an appropriate VA examination to determine the current nature and etiology of his claimed cirrhosis of the liver.

The examiner should identify all liver disorders found to be present, including any residuals of the Veteran's April 2006 liver transplant surgery.  With respect to each disorder diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not related to the Veteran's service.

The examiner should also address whether a liver disability is at least as likely as not due to or caused by and/or aggravated by the service-connected PTSD.  

The examiner should specifically address the December 2005 VA treatment record noting an impression of cirrhosis of the liver "without mention of alcohol," the allegation from the Veteran's representative during the August 2016 Board hearing that the Veteran's PTSD led to alcoholism which, in turn, resulted in cirrhosis of the liver, as well as the May 2015 statement from Dr. W.B.L. noting that the Veteran's poor health is related to his long history of drinking which was likely the result of an attempt to self-medicate his PTSD.  A complete rationale should be given for all opinions and conclusions expressed.

6. After undertaking the development above, readjudicate the Veteran's claims.

The appellant 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 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 (2014).



______________________________________________
R. FEINBERG
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs