Citation Nr: 1758020 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 04-00 321A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for loss of use of the left upper extremity (LUE) (originally claimed as brittle bones and loss of use of the left arm). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for skin cancer due to exposure to chemical herbicides. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension (HTN), to include as secondary to service-connected anxiety disorder. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for spina bifida occulta with recurrent lumbosacral strain and arthritis. 5. Entitlement to service connection for myasthenia gravis due to exposure to chemical herbicides. 6. Entitlement to service connection for residuals of heat stroke. 7. Entitlement to service connection for sleep apnea, to include as secondary to HTN and service-connected anxiety disorder. 8. Entitlement to an initial rating in excess of 30 percent for anxiety disorder prior to July 30, 2015, and in excess of 50 percent therefrom. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from July 1970 to April 1972. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2009, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A written transcript of the hearing has been prepared and incorporated into the evidence of record. In a November 2016 remand, the long and complex procedural history as to the claims on appeal was summarized in detail and will not be repeated here. The November 2016 remand directives called for the Agency of Original Jurisdiction (AOJ) to obtain contemporaneous VA treatment records. Review of the record reflects that VA records dated through mid-2017 were obtained and added to the claims file. The claims have now been returned to the Board for further appellate consideration. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Legacy Content Manager paperless claims file associated with the Veteran's claims. FINDINGS OF FACT 1. Service connection for loss of use of the LUE (originally claimed as brittle bones and loss of use of the left arm), skin cancer due to herbicide exposure, HTN, and spina bifida occulta was denied by the RO in an October 1984 rating action. The Veteran was notified of this action and of his appellate rights, but did not file a timely appeal. 2. Since the October 1984 decision denying service connection for loss of use of the LUE, skin cancer, HTN, and spina bifida occulta, the additional evidence, not previously considered, is cumulative and does not relate to an unestablished fact necessary to substantiate the claims or raise a reasonable possibility of substantiating the claims. 3. The preponderance of the competent and credible evidence indicates that the Veteran's myasthenia gravis is not related to his active service, to include his exposure to herbicides. 4. The preponderance of the competent and credible evidence indicates that the Veteran's sleep apnea is not related to his active service, to include as secondary to HTN or service-connected anxiety. 5. There has been no demonstration by competent clinical, or competent and credible lay, evidence of record of a current diagnosis for any residuals of heat stroke, to include a brain hemorrhage. 6. Prior to July 30, 2015, the evidence does not more nearly reflect occupational and social impairment with reduced reliability and productivity due to the severity, frequency, and duration of psychiatric symptoms of anxiety disorder. 7. From July 30, 2015, the evidence does not more nearly reflect occupational and social impairment with deficiencies in most areas due to the severity, frequency, and duration of psychiatric symptoms of anxiety disorder. CONCLUSIONS OF LAW 1. The additional evidence received subsequent to the October 1984 decision of the RO that denied service connection for loss of use of the LUE, skin cancer, HTN, and spina bifida occulta is not new and material; thus, service connection for these disabilities is not reopened, and the October 1984 RO decision remains final. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for establishing entitlement to service connection for myasthenia gravis have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for establishing entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 4. The criteria for service connection for residuals of heat stroke have not been met. 38 U.S.C. §§ 1110, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. The criteria for an initial evaluation in excess of 30 percent for anxiety disorder prior to July 31, 2015, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9413 (2017). 6. The criteria for an initial evaluation in excess of 50 percent for anxiety disorder from July 31, 2015, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, DC 9413 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duty to notify was satisfied by July 2002, October 2005, October 2007, March 2008, November 2008, May 2010, and October 2011 letters. See 38 U.S.C. §§ 5102, 5103, 5013A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As for the duty to assist, VA obtained all available service treatment records (STRs), service personnel records, and all pertinent treatment records. These matters were remanded by the Board for further development in December 2016, to include updating the medical evidence on file. Review of the record shows that records dated through mid-2017 were obtained. On the basis of this record, the evidence does not indicate a nexus to service or a service-connected disability for the claimed disorders. As a result VA examinations have not been conducted as to the claims of service connection. Such examinations are not necessary without such evidence. See 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4)(i) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Moreover, since the most recent anxiety examination in 2015, the subsequently dated records do not reflect additional treatment for his mental health symptoms. Thus, additional mental health evaluation is also not necessary at the current time. Service Connection - In General Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). In addition, certain chronic diseases (e.g., myasthenias gravis, malignant tumors, DJD, HTN) may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The chronicity provisions are applicable where evidence, regardless of its date, show that a veteran had a chronic condition, as defined in 38 C.F.R. § 3.309(a) (2017), in service, or during an applicable presumptive period, and still has that disability. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2017). This rule does not mean that any manifestations in service will permit service connection. To show 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 as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2017). The United States Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Additionally, when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § 3.310 (2017). Agent Orange On December 27, 2001, the Veterans Education and Benefits Expansion Act of 2001 was enacted. See Pub. L. No. 107-103, 115 Stat. 976 (2001). This law made substantive changes to 38 U.S.C. § 1116 pertaining to presumption of service connection for diseases associated with exposure to certain herbicide agents. Effective January 1, 2002, a veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides. See 66 Fed. Reg. 23168 (May 8, 2001) (to be codified at 38 C.F.R. §§ 3.307, 3.309). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (2017). The following diseases shall be service connected if the veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) (2017) are satisfied: chloracne or other acneform disease consistent with chloracne, Hodgkin's disease, type II diabetes mellitus, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e) (2017). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 61 Fed. Reg. 414,421 (1996), see also 67 Fed. Reg. 121, 42,600 (June 24, 2002). Abnormal sperm parameters and infertility have specifically been excluded from presumptive service connection based on herbicide exposure. See 68 Fed. Reg. 97, 27,630-27,641 (May 20, 2003). Service connection may be granted for disease which is diagnosed after discharge from military service, when all of the evidence, including that pertinent to service, establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d) (2017); see Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a) (2012); 38 C.F.R. § 3.303(a) (2017); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Loss of Use of LUE, Skin Cancer, HTN, and Spina Bifida Occulta Service connection for loss of use of the LUE (brittle bones), skin cancer, HTN, and spina bifida occulta was previously denied by the RO in an October 1984 rating decision on the basis that the Veteran had not presented any evidence, other than his claim statement, to show that these conditions were caused by military service. Specifically, it was noted that there had been no diagnoses of skin cancer. As for the left arm, the STRs were negative for LUE problems. However, there was post service report, to include statement by the Veteran, that he was in a motorcycle accident shortly after discharge (see the Veteran's February 1975 statement). Post-surgical left shoulder X-ray by VA in March 1975 showed residual metallic plates and screws in the left radius and ulna. The STRs did reflect treatment in January and April 1971 for low back complaints. No further report of back problems was indicated prior to discharge, to include at time of discharge examination in April 1972. Post service VA record in May 1984 reflects diagnoses of HTN and spina bifida occulta. The RO denied the claim of service connection for HTN in that this condition was first clinically demonstrated many years post service. As for the claim of service connection for a back disorder, the RO denied the matter in that spina bifida occulta was a constitutional or development abnormality and not a disease or injury for which service connection could be granted. It was also noted that while he was seen for low back complaints during service, no chronic residuals were diagnosed. Thus, inservice back complaints were acute and resolved. His developmental back disorder existed throughout his lifetime, although not diagnosed until after service. The Veteran did not express disagreement with the October 1984 decision, and it became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2017). In June 2002, the Veteran filed to reopen the claims of entitlement to service connection for loss of use of the left arm and for skin cancer. He filed to reopen the claims of entitlement to service connection for HTN and spina bifida occulta in August 2005. In such cases, it must first be determined whether or not new and material evidence has been received such that the claim may now be reopened. 38 U.S.C. §§ 5108, 7105 (2012); Manio v. Derwinski, 1 Vet. App. 140 (1991). The question of whether new and material evidence has been received to reopen such claims must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed Cir. 1996). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing 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) (2017). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is generally presumed to be true for the purpose of determining whether new and material evidence has been received, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence associated with the claims folder subsequent to the October 1984 RO denial of service connection for loss of use of the LUE, skin cancer, HTN, and a back disorder includes post service VA and private treatment records, and Social Security Administration (SSA) documents. The SSA records show that the Veteran was awarded benefits for myasthenia gravis with progressive neurological involvement, depression, and coronary impairments, and sleep apnea. He was found to be disabled since May 2003. Also added was a transcript of the Veteran's testimony at a hearing in 2009. Review of the records added to the file since the 1984 RO decision reflects continued post service treatment for HTN, occasional LUE complaints, and low back problems, to include multi-level degenerative changes throughout the lumbar spine (see, e.g., magnetic resonance imaging (MRI) of the lumbar spine from 2004). A history of low back problems was noted ever since the (post service) 1972 motorcycle accident. These records also reflect occasional treatment for skin problems to include reports of brown spots in the mid-2000s, a rash in 2006, a right thigh nodule in 2007, seborrheic keratosis in 2010, and a right parotid mass (which was benign) in 2016. The only instance where skin cancer was noted was in 2010 when a basal cell carcinoma (BSC) was removed from the Veteran's mid-back without incident. In this case, the evidence received in connection with the Veteran's application to reopen his claims of service connection for loss of use of the LUE, HTN, and a back disorder consists primarily of records of treatment many years after service that does not indicate in any way that the conditions are service related. Such evidence is not new and material evidence upon which the claims may be reopened. Cox v. Brown, 5 Vet. App. 95 (1993). Regarding skin cancer, it is noted that the condition was not previously diagnosed at the time of the 1984 denial, but in the years since, the Veteran has been seen for various skin complaints and as summarized above, one instance of a BSC. Apparently, none of the reported lesions, nodules, or brown spots noted has been shown to be cancerous, except for the mid-back BSC in 2010. The Veteran's treatment providers have not indicated that this condition or any other skin disorder, to include seborrheic keratosis or a benign parotid mass, occurred in military service or was aggravated or caused by service, or was related to herbicide agent exposure. Additionally, BSC, seborrheic keratosis, and a parotid mass are not disabilities which are presumptively associated with herbicide agent exposure under 38 C.F.R. § 3.309 (2017). In this case, as the Veteran has not submitted evidence meeting the low threshold for reopening the claims of service connection for loss of use of the LUE, skin cancer, HTN, or a back disorder, the October 1984 decision is final and the appeal is denied. Shade 24 Vet. App. 110. Service Connection for Myasthenia Gravis due to Herbicide Exposure A review of the Veteran's STRs is unremarkable for any symptoms, treatment, complaints or diagnosis of myasthenia gravis during service. Post-service treatment records, however, confirm that he has a current diagnosis of myasthenia gravis. This condition was first diagnosed in 2002, approximately 30 years after the Veteran's separation from service. Consequently, the question is whether this condition is related to the Veteran's active service, including as due to exposure to herbicides. Inasmuch as the Veteran has contended that his myasthenia gravis is the result of exposure to Agent Orange during service, the Board notes that service connection may be established on a legal presumption based on herbicide exposure where a veteran served on active duty in the Republic of Vietnam during the Vietnam era and has a certain listed disability. See 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Such a veteran is presumed to have been exposed to herbicides during service unless there is affirmative evidence to the contrary. See id.; see also McCartt v. West, 12 Vet. App. 164, 166 (1999). Notably, however, myasthenia gravis is not a listed disability for which service connection may be granted on a presumptive basis. Moreover, no treatment providers have attributed the diagnosis of myasthenia gravis to his military service, to include his presumed Agent Orange exposure. The most probative evidence of record is that the Veteran did not suffer from myasthenia gravis during service or within one year after his separation from service. Rather, the evidence clearly indicates that the Veteran developed known symptoms of myasthenia gravis in 2002, approximately 39 years after discharge, and there is no evidence of an etiological relationship between the condition and the Veteran's service, including as a result of presumed Agent Orange exposure. Based on this evidence, there is no medically sound basis for attributing the Veteran's myasthenia gravis to his active service. See Holton v. Shinseki, 557 F.3d at 1366. Based on the foregoing, the preponderance of the evidence is against a finding that the Veteran's myasthenia gravis is at least as likely as not etiologically related to his active service. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). Hence, the appeal must be denied. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert, supra. Therefore, the Board is unable to identify a reasonable basis for granting the Veteran's claim. Service Connection for Residuals of a Heat Stroke The STRs reflect that the Veteran was seen on one occasion for heat exhaustion. Specifically, he developed dizziness at the Bob Hope show. Treatment included medication for tension headaches and fluids. No further residuals were noted, to include at time of discharge examination in April 1972. Post service records are negative for residuals of heat stroke. There have been claims by the Veteran that he has post service evidence of brain hemorrhage which he also related to his inservice "heat stroke." In April 2016, he was seen for vertigo, and MRI of the brain showed bilateral cerebellar infarcts, left greater than right. It is noted that additional MRI of the brain in June 2016 was negative. At no time, have any clinical findings been associated by treatment providers to an inservice incident of being treated for heat exhaustion. Moreover, no actual, chronic residuals of a heat stroke have been reported at any time since separation from service in 1972. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131; and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.§ 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.§ 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, in the absence of proof of present disability there can be no valid claim. As there is no competent or lay medical evidence of current residuals of heat stroke, the claim must be denied. For the reasons stated above, the Board finds that the preponderance of the evidence is against the claim of service connection for residuals of heat stroke. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra. Service Connection for Sleep Apnea, to include as Secondary to HTN and a Service-Connected Anxiety Disorder This claim for service connection also fails in that while sleep apnea has been diagnosed, (since approximately 2003), no treatment provider has ever associated this condition to the Veteran's military service. Moreover, the condition, which was first shown over 30 years after service discharge, has never been associated with a service-connected disability, to include anxiety disorder. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 200) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). See also Mense v. Derwinski, 1 Vet. Ap. 354, 356 (1991) (affirming the Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance J. concurring) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra. Increased Ratings - In General Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2017). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2017). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings may be appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See e.g. Hart v. Mansfield, 21 Vet. App. 505 (2007). Anxiety Disorder All mental disorders (excluding eating disorders), Diagnostic Codes (DCs) 9201 through 9440, are evaluated pursuant to the General Rating Formula for Mental Disorders set out at 38 C.F.R. § 4.130 (2017). The Veteran's mental disorder was assigned DC 9413 for unspecified anxiety disorder. A 30 percent evaluation is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). DC 9413. A 50 percent evaluation is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment or abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is 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 of 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. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2017). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2017). The symptoms listed in rating schedule for mental disorders are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When the symptoms and/or degree of impairment due to a veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. Mittleider v. West, 11 Vet. App. 181 (1998). In evaluating psychiatric disorders, the VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). See 38 C.F.R. § 4.130 (2017). As such, the diagnosis of a mental disorder should conform to DSM-5. See 38 C.F.R. § 4.125(a) (2017). Diagnoses under previous editions of DSM include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores ranging from 61 to 70 are indicative of some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. A GAF score of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). The Board notes that an examiner's classification of the level of psychiatric impairment by a GAF score is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. Entitlement to an Initial Rating in Excess of 30 Percent for Anxiety Disorder Prior to July 30, 2015, and in Excess of 50 Percent Therefrom When examined at a private facility in March 2004, the Veteran was clean and cooperative. He denied any problems with impulsivity, and his level of motivation was high. There was no looseness of association in his conversation. He maintained appropriate eye contact. He did report some sleep impairment. He had symptoms of depression, to include past instances of suicidal ideation. There was no delusional material elicited during the interview. There was no evidence of grandiose or paranoid thinking. Posttraumatic stress disorder (PTSD) was diagnosed, and his GAF score was 53. VA records show that upon visits in June 2005, August 2005, and December 2005, the mental health diagnoses were depressive disorder with history of adjustment disorder. His GAF score remained in the mid-50s throughout. When examined by VA in April 2007, the Veteran was oriented times three. He was casually groomed and while his clothes were dirty, he was not malodorous. His eye contact was generally maintained throughout the interview. He presented with a full range of affect. His thoughts were generally logical with no obvious defects in memory or cognition observed. His speech was at a normal rate and volume. He presented with an irritable mood which was being managed with medications. He had recurrent nightmares with lashing about. The examiner found that he did not meet the criteria for PTSD, but rather anxiety disorder. His GAF score was 70. The examiner noted that the Veteran's symptoms were mild and primarily consisted of difficulty sleeping and recurring nightmares. Private and VA records show treatment through 2012 for anxiety. His alcohol and amphetamine dependence were noted to be in sustained remission. His GAF scores remained between 55 and 65. At a January 2014 VA mental health visit, the Veteran said that he was doing "real good." His anxiety and intrusive thoughts had decreased, and his sleeping habits had improved. When examined by VA in July 2015, the Veteran's psychiatric symptoms included anxiety, suspiciousness, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. He had problems with anger and was sometimes aggressive towards his daughter, but the examiner thought this problem was more likely due to his personality disorder, but exacerbated by his anxiety. Subsequently dated VA records through 2017 show that while depressive disorder is diagnosed, the Veteran reports no current anxiety. Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of an initial evaluation in excess of 30 percent prior to July 31, 2015. The evidence, as summarized above, does not more nearly reflect occupational and social impairment with reduced reliability and productivity due to the severity, frequency, and duration of psychiatric symptoms. The private examiner noted no more than mild to moderate impairment. The VA examiner noted no more than mild symptoms while generally functioning pretty well with meaningful interpersonal relationships. As of VA examination on July 31, 2015, it was noted that there was a slight increase in symptoms. Primarily, the Board noted an increase in anger issues attributed to a nonservice-connected personality disorder. However, it was noted that this condition was exacerbated by his service-connected anxiety. He reported nightmares three times a week, related to Vietnam, though the examiner doubted the frequency was this high. The examiner noted the Veteran manifested anxiety, suspiciousness, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. His symptoms are consistent with a 50 percent evaluation. It is concluded that his mental health symptoms are best represented by the currently assigned 50 percent rating as of the date of the VA examination on July 31, 3015. An increased rating of 70 percent is not warranted, as deficiencies in most areas were not identified. Although the Board accepts that the Veteran is competent to report his symptoms, the Board finds that his symptoms are not of the severity, frequency, or duration to more nearly approximate the criteria for the next higher evaluation-that is a 70 percent evaluation. For instance, the Veteran's mood symptoms are not of the severity contemplated by the next higher rating. The record shows anxiety at times, but no true panic attacks or near continuous panic. The record shows depressed mood, but there is no indication that the Veteran has suicidal thoughts or is unable to function independently, appropriately and effectively. The record shows irritability and anger, but no periods of unprovoked irritability with periods of violence. The Veteran is not shown to have manifested total occupational and social impairment, required for the assignment of a 100 percent rating. In making these determinations, the Board has considered the GAF scores. VA mental health records reflect no GAF scores below the mid-50s. The assigned GAF scores are representative of mild to moderate symptoms or mild to moderate difficulty in social, occupational, or school functioning. The Board believes that this characterization of disability is congruent with the symptoms as reported by the Veteran and the medical findings. The lay and the medical evidence are probative in this matter. However, the Board assigns greater probative value to the conclusions reached on clinical examinations, which reflect the Veteran's overall occupational and social impairment as this evidence reflects examination of the Veteran by a skilled medical professional. Therefore, weighing the evidence of record, the Board finds that the Veteran's anxiety symptomatology is best represented by a 30 percent rating prior to July 31, 2015, and 50 percent therefrom, and no higher. Accordingly, the claim for an increased rating is denied. As the evidence is not in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 4.3 (2017); Gilbert, supra. ORDER New and material evidence not having been received, the claim of service connection for loss of use of the LUE is denied. New and material evidence not having been received, the claim of service connection for skin cancer is denied. New and material evidence not having been received, the claim of service connection for HTN is denied. New and material evidence not having been received, the claim of service connection for spina bifida occulta with recurrent lumbosacral strain and arthritis is denied. Service connection for myasthenias gravis is denied. Service connection for residuals of heat stroke is denied. Service connection for sleep apnea is denied. An initial evaluation in excess of 30 percent for anxiety disorder prior to July 31, 2015, is denied. An initial evaluation in excess of 50 percent for anxiety disorder from July 31, 2015, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs