Citation Nr: 1756794 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 12-07 482 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased disability evaluation for posttraumatic stress disorder (PTSD), rated as 70 percent disabling from February 16, 2002 to October 1, 2014. 2. Entitlement to an effective date prior to August 10, 2007 for the grant of service connection for PTSD, to include whether a September 1995 rating decision contained clear and unmistakable error (CUE). 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a shin mass. 4. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for testicular cancer. 5. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for diabetic hypertension. 6. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. 7. Entitlement to service connection for tinnitus. 8. Entitlement to service connection for diabetic hypertension, including as secondary to Agent Orange exposure and/or service-connected disability. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from September 1965 to August 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal of July 2011 and February 2013 rating decisions of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Cleveland, Ohio. The Veteran was granted an increased, 70 percent disability rating for PTSD in the February 2013 rating decision, effective February 16, 2012. In December 2016, the Veteran was granted an increased, 100 percent disability rating for his PTSD, effective October 2, 2014. As the Veteran is in receipt of a 100 percent disability evaluation for his PTSD from October 2, 2014, the issue of entitlement to an increased disability evaluation for the rating period since October 2, 2014 is moot, and there is no legal basis upon which to award a higher evaluation for PTSD from October 2, 2014. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Nevertheless, as the Veteran has not been granted the maximum benefit allowed for the rating period prior to October 2, 2014, the claim for an increased disability rating for the rating period from February 16, 2012 to October 1, 2014 remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). As explained below, the Veteran's claims of entitlement to service connection for tinnitus and diabetic hypertension are reopened. The issue of entitlement to service connection for diabetic hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a September 1995 rating decision, the RO denied the Veteran's claim of entitlement to service connection for PTSD. The Veteran filed a notice of disagreement, and a statement of the case (SOC) was issued in March 1996. The Veteran did not perfect his appeal, and it became final. 2. In a May 1998 rating decision, the RO denied the Veteran's claim of entitlement to service connection for PTSD. The Veteran did not appeal that decision, and it became final. 3. The Veteran has failed to set forth sufficient errors of fact or law, or establish that the result would have been manifestly different but for the alleged errors as it pertains to the rating decisions issued in September 1995 and May 1998. 4. Subsequent to the September 1995 and May 1998 rating decisions, there are no claims formal or informal to reopen service connection for PTSD until August 10, 2007. 5. The Veteran's PTSD most closely approximates occupational and social impairment with difficulties in most areas, such as work, family relations, and mood, due to symptoms such as disturbance of mood and motivation, irritability, anxiety, sleep impairment, and depression; total occupational and social impairment is not shown. 6. In an August 1997 decision, the Board denied service connection for testicular cancer and a shin mass. 7. In an unappealed October 2008 rating decision, the RO denied service connection for tinnitus and diabetic hypertension; the October 2008 rating decision also denied the Veteran's application to reopen the denied claim of entitlement to service connection for testicular cancer. 8. The evidence received since the October 2008 rating decision as to the issues of entitlement to service connection for tinnitus and diabetic hypertension are relevant and probative of the issues at hand. 9. The evidence received since the August 1997 Board decision as to the issue of service connection for a shin mass, and the October 2008 rating decision as to the issue of service connection for testicular cancer, is cumulative in nature and repetitive of facts that were previously considered. 10. Tinnitus is attributable to service. CONCLUSIONS OF LAW 1. The criteria for the award of an earlier effective date, prior to August 10, 2007 for entitlement to service connection for PTSD have not been met. 38 U.S.C.A. §§ 5110, 5111 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.159, 3.400, 20.302, 20.1103 (2017). 2. The criteria the award of an earlier effective date, prior to August 10, 2007, for entitlement to service connection for PTSD have not been met. 38 U.S.C.A. §§ 5110, 5111 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.159, 3.400, 20.302, 20.1103 (2017). 3. The motions for revision based on CUE in the September 1995 and May 1998 rating decisions are denied. 38 U.S.C.A. §§ 5101, 5109A, 7105 (West 2014); 38 C.F.R. § 3.105 (2017). 4. The criteria for a disability rating in excess of 70 percent for PTSD are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). 5. The August 1997 Board decision denying the claims for service connection of a shin mass and testicular cancer is final. 38 U.S.C.A. §§ 5108, 7145 (West 2014); 38 C.F.R. § 20.1100 (2017). 6. The October 2008 rating decision denying the claims for service connection of tinnitus and diabetic hypertension, as well as denying the application to reopen the claim for service connection of testicular cancer, is final. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 20.1103 (2017). 7. New and material evidence has been received to reopen the claims of service connection for tinnitus and diabetic hypertension. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). 8. New and material evidence has not been received to reopen the claims of service connection for a shin mass and testicular cancer. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). 9. Tinnitus was incurred in wartime service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the agency of original jurisdiction (AOJ) issued notice letters to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claims for service connection and the downstream claim for an increased disability rating for PTSD, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran's claim for entitlement to an earlier effective date, for the award of entitlement to service connection for a back and neck disability, is considered a "downstream" element of the grant of service connection. For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection. See VAOPGCPREC 8-2003 (Dec. 22, 2003). Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As for the Veteran's claim of entitlement to an earlier effective date on the basis of CUE, the Board observes that the duties to notify and assist imposed by the VCAA are not applicable where CUE is claimed in RO decisions. See Parker v. Principi, 15 Vet. App. 407 (2002); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (regarding CUE in a Board decision). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of post-service treatment, and the Veteran's own statements in support of his claims. The Veteran was afforded a VA examination responsive to the claim for service connection of tinnitus. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The opinions were conducted by a medical professional, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The Veteran was afforded VA examinations responsive to the claims for increased ratings. The examination reports contain all the findings needed to rate the Veteran's service-connected disabilities on appeal, including history and clinical evaluation. See 38 C.F.R. § 3.327(a) (2016); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007). As will be discussed below, the Veteran has not presented new and material evidence to reopen the claim for service connection of a cardiac disorder. As such, no opinion is necessary. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Earlier Effective Date, to Include CUE Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110(a). The effective date of an award of disability compensation to a veteran is the day following the date of discharge or release if the application therefor is received within one year from such date of discharge or release. 38 U.S.C.A. § 5110(b)(1). A claim is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p) (2017). 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. The Court has made it clear that the date of the filing of a claim is controlling in determinations as to effective dates. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). There are exceptions to this general rule, in 38 U.S.C.A. § 5110, but none are applicable in this case, as shown below. Finally, the Board notes the case of Rudd v. Nicholson, 20 Vet. App. 296 (2006), which held that if a claimant wishes to obtain an effective date earlier than that assigned in a RO decision, the claimant must file a timely appeal as to that decision. Otherwise, the decision becomes final and the only basis for challenging the effective date is a motion to revise the decision based on CUE. The Court also held that there can be no freestanding claim for an earlier effective date and that it was error to entertain such a claim. Rather, the proper course of action would have been to dismiss the appeal. The Board notes that earlier effective date claims and a claim of CUE are different, mutually exclusive routes to the goal of determining an effective date. Flash v. Brown, 8 Vet. App. 332 (1995). In arguing for the assignment of an earlier effective date for the award of service connection for PTSD, the Veteran argues that his award of service connection should be retroactive to the date his first applied for disability benefits. See e.g. November 2010 Notice of Disagreement. The Veteran also argues that the September 1995 and May 1998 rating decisions contained clear and unmistakable error in denying his claim for entitlement to service connection for PTSD. In support of this argument, the Veteran contends the July 1995 VA examiner erred in finding that the Veteran did not have an Axis-I diagnosis of PTSD, and thus the RO erroneously denied his claim. Regarding the May 1998 denial, the Veteran contends that the rating opinion was wrong for stating that there was no evidence between the Veteran's psychiatric disorder and an in-service stressor event. The Veteran is seeking entitlement to an earlier effective date, prior to August 10, 2007 for the award of entitlement to service connection for PTSD. A review of the Veteran's claims file indicates that, in the September 1995 rating decision, the Veteran's claim of entitlement to service connection for PTSD was denied; the RO reviewed the Veteran's service treatment records and the report of a July 1995 examination in making its determination. Based upon this evidence, the RO denied the Veteran's claim for service connection for PTSD because of a lack of a current disability. Thereafter, in May 1997, the Veteran submitted a written statement which was accepted as an application to reopen the previously denied claim of entitlement to service connection for PTSD. The Veteran was afforded another VA examination and the RO requested information in an effort to verify the Veteran's alleged stressor. The April 1998 VA examination report indicates that the Veteran did not meet the diagnostic criteria for an Axis I diagnosis. In light of this evidence, and with consideration of the Veteran's failure to provide additional information as to his alleged stressor event, the RO issued a rating decision which confirmed the previous denial of service connection for PTSD on the basis that there was no evidence of a psychiatric disability, to include PTSD, or a confirmed stressor event in service. Subsequent to the September 1998 and May 1995 rating decisions, the Veteran did not submit any new medical evidence or lay statements sufficient to reopen his claims until August 10, 2007. A review of the Veteran's correspondence, dated August 10, 2007, indicates that he submitted a statement in support of his claim for PTSD wherein he provided additional information as to his in-service stressor event. In June 1998, the Veteran was afforded a VA examination report, which indicated that the Veteran had an Axis I diagnosis of PTSD, which the VA examiner indicated was due to the Veteran's verified in-service stressor event. This submission of new evidence met the standard for new and material evidence, as it addressed an element of service connection that was previously lacking. As noted above, at the time of the September 1995 and May 1998 rating decisions, the Veteran's claim was denied as there was no evidence showing a current psychiatric disability, specifically, PTSD and a verified in-service stressor event. As such, the Veteran's claim for entitlement to service connection for PTSD was reopened on the submission of new and material evidence. See 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2017). Therefore, the Board finds that August 10, 2007 represents the earliest possible date for an award of service connection for PTSD. Applying the regulations discussed above, the effective date for a grant of service connection following a prior a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 (2017). If entitlement arose prior to August 10, 2007, the date the application to reopen was received, then, August 10, 2007 is the later date and the appropriate effective date; if entitlement arose after August 10, 2007, then the Veteran is still not entitled to an effective date earlier than August 10, 2007, as the effective date should be the later of the date of receipt of claim or the date entitlement arose. As such, the AOJ assigned the earliest possible effective date for its grant of entitlement to service connection for a PTSD. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). In conclusion, the Board finds that August 10, 2007 is the earliest possible date for which the Veteran is entitled to an award of service connection for PTSD. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2017). The Veteran additionally alleges entitlement to an earlier effective date, for the award of entitlement to service connection for PTSD, on the basis of CUE. Specifically, the Veteran contends that the July 1995 and May 1998 VA examiners were incorrect in failing to diagnosis him with PTSD, and did not properly consider the Veteran's allegations and reported symptoms. The Veteran also alleges that it was error for the RO to find that the Veteran did not have a verified in-stressor event in 1998, because his in-service stressor event was confirmed in connection with his August 10, 2007 claim. However, as will be discussed below, the Board does not find that the Veteran has established a valid claim of CUE in either the September 1995 or the May 1998 rating decisions. Previous determinations which are final and binding will be accepted as correct in the absence of clear and unmistakable error. See 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). If the record establishes such clear and unmistakable error, the prior decision will be reversed or amended; a finding of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104 (a), 3.105(a). In determining whether a prior determination involves clear and unmistakable error, the Court has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The Board notes that an assertion of clear and unmistakable error is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked the presumption becomes even stronger. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Therefore, an appellant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). The appellant in this appeal has not met this burden. The Court has consistently stressed the rigorous nature of the concept of CUE. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts: it is not mere misinterpretation of facts." See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). The Board also notes that any claim of CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). This specific allegation must assert more than merely disagreement with how the facts of the case were weighed or evaluated. In other words, to present a valid claim of CUE the claimant cannot simply request that the Board reweigh or reevaluate the evidence. See Crippen v. Brown, 9 Vet. App. 412 (1996). In order to show that CUE occurred, the evidence must show that the law was incorrectly applied to the facts as they were known at the time and that, had the error not occurred, the decision would have been manifestly different. See Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). As applied to the Veteran's appeal, the Board finds no evidence of CUE in either the September 1995 or May 1998 rating decisions. As to the Veteran's allegation that the July 1995 and April 1998 VA examiners erred in finding that the Veteran did not have an Axis I psychiatric disability, to include PTSD, the Board finds this amounts to an allegation that the VA examination was inadequate. The Board notes that the adequacy of a VA examination falls under the duty to assist. Failure in the duty to assist cannot constitute CUE. Crippen v. Brown, 9 Vet.App. 412, 418 (1996); Caffrey v. Brown, 6 Vet.App. 377, 383-84 (1994); Cook v. Principi, 318 F.3d 1334, 1341 (Fed. Cir. 2002). As to the Veteran' contention that the RO was incorrect in finding that the Veteran did not have a verified in-service stressor event, this is inaccurate and does not amount to a claim for CUE. The Board observes that the RO repeatedly informed the Veteran that additional information was required in order to verify the alleged in-service stressor event, and the Veteran failed to respond. Without the additional information, there was no basis for a diagnosis of PTSD or an award of service connection; the claimed in-service stressful events must be independently verified by credible supporting evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence"). The RO's findings regarding the absence of a verified stressor were not inaccurate at the time of the decision given the evidence of record. Therefore, based upon the above analysis, the Board finds the Veteran has failed to adequately set forth the alleged errors of fact or law, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error, the CUE motion as it pertains to the claim for an effective date earlier than August 10, 2007, for the award of entitlement to service connection for PTSD. As such, the Veteran's claim of CUE as applied to the September 1995 or May 1998 rating decisions must be denied. Disability Evaluation Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the service-connected PTSD did not materially change and a uniform evaluation is warranted for the rating period on appeal. The Veteran's PTSD is currently evaluated as 70 percent disabling for the rating period from February 16, 2012 to October 1, 2014 pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent disability rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to symptoms such as: suicidal ideation; obsessive 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 an inability to establish and maintain effective relationships. Id. 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. When determining the appropriate disability evaluation under the general rating formula, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 117-18. The GAF is a scale reflecting the "'psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.'" Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (1994) (DSM-IV)). See also 38 C.F.R. § 4.130. After a review of all the evidence, the Board finds that the Veteran's service-connected PTSD more nearly approximates the criteria for the current 70 percent disability evaluation. The Board finds that the Veteran's psychiatric symptoms have been relatively consistent, and that the 70 percent evaluation takes into account the Veteran's social and occupational impairment. Throughout the rating period on appeal, the Veteran's PTSD has been characterized by occupational and social impairment with deficiencies in most areas, including work, thinking, and mood due to symptoms such as mild memory loss, decreased concentration, depression, anxiety, and sleep impairment, as demonstrated by the findings at the September 2012 and October 2014 VA examinations; the Veteran's VA treatment records are consistent with the findings on VA examination. The Veteran complained of sleep impairment, irritability, hypervigilance, anxiety, and depression at his VA examinations. He also reported memory loss and difficulty concentrating. The current 70 percent disability evaluation accounts for the Veteran's social and occupational impairment, as caused by these symptoms. The evidence does not show that the Veteran experiences total occupational and social impairment due to his symptoms. He does not have manifestations such as grossly impaired thought processes, persistent delusions and hallucinations, persistent danger of hurting himself or others, or intermittent inability to perform activities of daily living, as contemplated by a 100 percent disability rating under Diagnostic Code 9411. As previously discussed, the Board acknowledges that the Veteran's PTSD symptoms are suggestive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to symptoms such as depression, irritability, decreased concentration, and disturbances of mood and motivation. Nonetheless, as noted in the September 2012 and October 2014 VA examination reports and the Veteran's VA treatment records, the Veteran's functional impairments are not so severe as to impair his thought processes. There was no evidence of symptoms such as delusions or hallucinations, and his impulse control, insight, and judgment are intact. Further, the VA examination reports indicate that the Veteran is able to communicate effectively and that he is alert and oriented, with appropriate speech and normal thought processes. Although fluctuations in symptomatology, GAF scores, and overall impairment are inevitable during the course of such a lengthy appeal period, the Board reiterates that the Veteran's symptoms are nearly the same as those listed in the criteria for a 70 percent rating and the examiners' characterization of these symptoms were indicative of, at most, moderately severe impairment caused by the disorder. Moreover, there was no specific indication to the contrary in the Veteran's statements. The Board also recognizes the Veteran's occupational and social impairment. However, he is married and has an adult daughter. Overall, his symptoms do not equate in severity, frequency, and duration to total occupational and social impairment. For these reasons, the Board finds that a preponderance of the evidence is against a disability evaluation in excess of 70 percent for PTSD for the entire period. 38 C.F.R. §§ 4.3, 4.7. According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b) ] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet.App. 484 (2016). Accordingly, referral for consideration of 38 C.F.R. § 3.321(b)(1) on a collective basis is not warranted in this case. As to consideration of referral for an extraschedular rating on an individual basis, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's PTSD are fully contemplated by the applicable rating criteria. As shown above, the criteria include symptoms, each of which were addressed in the September 2012 and October 2014 VA examination reports and VA treatment records, which provided the basis for the disability rating that was assigned. The Veteran primarily complained of depression, irritability, anxiety and sleep impairment, which were clearly contemplated in the currently assigned disability evaluation. In any event, the evidence does not reflect that there has been frequent hospitalization or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. Therefore, referral for consideration of an extraschedular rating for the Veteran's PTSD is not warranted. 38 C.F.R. § 3.321(b)(1). In the absence of exceptional factors associated with PTSD, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Legal Criteria to Reopen Service Connection In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. "New" evidence is defined as evidence not previously submitted to agency decision makers. "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 CAVC has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. Shade v. Shinseki, 24 Vet. App 110 (2010). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 38 C.F.R. § 3.156(c). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510 (1992). The RO initially denied service connection of a shin mass and testicular cancer in April 1994. The Veteran appealed, and in August 1997, the Board found that there was no evidence that a shin mass or testicular cancer are etiologically related to service. The Board decision is final. See 38 U.S.C.A. § 7104(b). The RO initially denied service connection for tinnitus and diabetic hypertension in October 2008; the RO also denied the application to reopen the previously denied claim of entitlement to service connection for testicular cancer. The Veteran did not file a substantive appeal and the decision became final. See 38 U.S.C.A. § 7105(c). The October 2008 rating decision that denied the Veteran's claims for service connection of tinnitus and diabetic hypertension on the basis that there was no record of complaints, treatment, or diagnoses related to the Veteran's tinnitus and diabetic hypertension during service, and no evidence that his tinnitus was related to service; the RO also noted that the Veteran was not service-connected for diabetes mellitus and thus could not be service-connected for diabetic hypertension. The October 2008 rating decision denied the application to reopen the claim for testicular cancer because there was no evidence indicating that the Veteran's testicular cancer is related to his service or his presumed Agent Orange exposure therein. Tinnitus and Diabetic Hypertension Since the denial of the Veteran's claims in August 1997 and October 2008, the evidence submitted includes additional VA and private treatment records, VA examination reports, and statements submitted by the Veteran in support of his claims. VA and private treatment records show treatment for tinnitus, diabetes mellitus, and hypertension. VA treatment records reflect that the Veteran had in-service noise exposure and is service-connected for left ear hearing loss as a result; statements by the Veteran indicate that he has constant tinnitus related to his noise exposure during service. VA and private treatment records also reflect that the Veteran has been diagnosed with diabetes mellitus, and that the Veteran is being treated for hypertension; the Board observes that the February 2013 rating decision states that the Veteran is "already service-connected [for the] condition of diabetes mellitus type 2." The added evidence speaks directly to elements which were not of record, mainly a possible relationship between the Veteran's tinnitus and diabetic hypertension and his service. This evidence cures an evidentiary defect. See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006) (finding that "the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied"). Accordingly, the Board finds that the claims for service connection for tinnitus and diabetic hypertension are reopened. Shin Mass and Testicular Cancer Since the denial of the Veteran's claims in August 1997 and October 2008, the evidence submitted includes VA and private medical records, and statements submitted by the Veteran in support of his claims. The evidence submitted subsequent to the August 1997 Board decision as to the issue of service connection for a shin mass is not new and material; likewise, the evidence submitted subsequent to the October 2008 rating decision is not new and material. The Veteran has submitted VA and private medical records reflecting that the Veteran has a history of testicular cancer. However, none of these records confirm that the Veteran currently has a shin mass. Likewise, neither the VA nor private treatment records demonstrate that the Veteran's testicular cancer and shin mass are related to the Veterans' service, including his presumed Agent Orange exposure. At the time of the prior decisions, there was no medical evidence indicating that the Veteran's shin mass and/or testicular cancer were causally or etiologically related to his service. This has not changed; the Veteran has not provided any new and material evidence demonstrating that he has a shin mass due to a disease or injury in service, or that his testicular cancer is due to a disease or injury during service, including Agent Orange exposure. Similarly, the lay statements are cumulative of the prior claims and prior lay evidence. In sum, the evidence submitted as to the Veteran's claims of service connection for a shin mass and testicular cancer is cumulative rather than new and material. Although the threshold for reopening a claim is low, the evidence presented in this case does not serve to reopen these claims. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service 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). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. For chronic diseases, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus The Board finds that service connection is warranted for tinnitus. The Veteran's in-service noise exposure is not in dispute. The Board acknowledges that tinnitus was not shown during service or at separation, but nonetheless points out that the absence of evidence of tinnitus at separation or for many years after is not determinative as to whether tinnitus is related to military service and does not preclude service connection of tinnitus in this case. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability); 38 C.F.R. § 3.303(d) (service connection warranted in some circumstances where disease is first diagnosed after service). The Veteran's competent and credible statements thus provide a nexus linking his current tinnitus and to his in-service noise exposure; harmful noise exposure is consistent with the conditions of his service. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2008) (lay evidence may suffice to prove service connection on its own merits). Hence, on this record, the evidence is found to be at least evenly balanced in showing that the Veteran's tinnitus at least as likely as not had clinical onset following his exposure to harmful noise levels in connection with his service. In resolving all reasonable doubt in the Veteran's favor, service connection is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to an effective date prior to August 10, 2007, for the grant of service connection for PTSD, is denied. Entitlement to revision based on CUE in the September 1995 and May 1998 rating decisions is denied. Entitlement to a disability rating in excess of 70 percent for PTSD is denied. The application to reopen the claim for service connection of a shin mass is denied. The application to reopen the claim for service connection of testicular cancer is denied. The application to reopen the claim for service connection of tinnitus is granted. The application to reopen the claim for service connection of diabetic hypertension is granted, and to this extent only the appeal is allowed. Entitlement to service connection for tinnitus is granted. REMAND As previously noted, the Veteran's claims files indicate that the Veteran was granted entitlement to service connection for diabetes mellitus. However, there is no indication that the RO has taken steps to effectuate this decision. A review of the electronic claims files does not reflect that a rating decision, or letter providing notice thereof, has been issued. The grant of service connection for diabetes mellitus is to be effectuated and the Veteran duly informed. A copy of the rating decision and notice thereof should be associated with the Veteran's claims file. In this regard, the Veteran asserts that he has diabetic hypertension related to his service, including his service-connected disabilities. VA and private treatment records and examination reports reflect a history of treatment for hypertension and diabetes mellitus. Accordingly, the Board finds that the Veteran should be afforded a VA examination regarding the claim for service connection of diabetic hypertension. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4). Furthermore, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). All available VA treatment records for the disabilities on appeal should be associated with the Veteran's claims file. Accordingly, the case is REMANDED for the following action: 1. If not completed by the time this remand is processed, the RO/AMC should issue a rating decision to the Veteran, implementing the grant of service connection for diabetes mellitus. The RO must provide the Veteran and his representative with notice of the rating decision and notice as to the Veteran's procedural and appellate rights. This issue should only be returned to the Board if the Veteran timely disagrees with the rating or effective date assigned and timely perfects his appeal after issuance of a statement of the case. 2. Associate with the claims file the Veteran's VA treatment records related to the claims on appeal from any VA facility identified by a review of the record. 3. The Veteran should be afforded a VA diabetes mellitus and/or hypertension examination to determine the nature and etiology of any hypertension that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The VA examiner should identify any current hypertension and provide an opinion as to whether it is as least as likely as not (50 percent probability or more) that any identified hypertension is related to any event, illness, or injury during service. If the Veteran's identified hypertension is not related to any event or injury during service, the VA examiner should provide an opinion as to whether any identified hypertension is proximately due to or the result of the service-connected diabetes mellitus, including whether any increase in severity of the identified hypertension is due to or the result of the service-connected diabetes mellitus. The provider is advised that the Veteran is competent to report symptoms, treatment, and diagnoses and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. A complete rationale, with specific reference to the relevant evidence of record, should accompany each opinion provided. 4. After completing any additional notification or development deemed necessary, the Veteran's claims should be readjudicated. If any of the claims remain denied, the Veteran should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs