Citation Nr: 18144241 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 14-41 698 DATE: October 25, 2018 ORDER Entitlement to a rating of 40 percent, but not higher, for fibromyalgia, from July 6, 2010 to March 10, 2016, is granted. Entitlement to an increased rating higher than 40 percent for fibromyalgia, from March 10, 2016 forward, is denied. Entitlement to an initial rating higher than 10 percent for major depressive disorder, secondary to fibromyalgia, prior to February 26, 2014, is denied. Entitlement to an increased rating higher than 30 percent for major depressive disorder, secondary to fibromyalgia, from February 26, 2014 forward, is denied. Entitlement to an effective date earlier than May 3, 2005 for service connection for major depressive disorder, secondary to fibromyalgia, is denied. REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. From July 6, 2010 the Veteran’s fibromyalgia symptoms included widespread musculoskeletal pain and tender points that were constant, or near constant, and were refractory to therapy. 2. The Veteran’s fibromyalgia symptoms do not display an exceptional or unusual disability picture as the symptoms are already contemplated by the schedular ratings. 3. From May 3, 2005 to February 26, 2014, the Veteran’s acquired psychiatric disorder, best diagnosed as major depressive disorder, is best evaluated as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress. 4. From February 26, 2014, the Veteran’s major depressive disorder is best evaluated as 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). 5. The RO received the Veterans claim for an acquired psychiatric disorder on May 3, 2005; a previous August 2003 rating decision that denied service connection for memory loss is final, and there are no formal or informal claims prior to May 3, 2005. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 40 percent for fibromyalgia, between July 6, 2011 and March 10, 2016 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.2, 4.3, 4.40, 4.45, 4.7, 4.71a, Diagnostic Code 5025 (2017). 2. The criteria for entitlement to an increased rating higher than 40 percent, for fibromyalgia, have not been met at any time during the period of the appeal. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.2, 4.3, 4.40, 4.45, 4.7, 4.71a, Diagnostic Code 5025 (2017). 3. The criteria for an initial rating higher than 10 percent for major depressive disorder, claimed as secondary to fibromyalgia, between May 3, 2005 and February 25, 2014, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.2, 4.3, 4.40, 4.45, 4.7, 4.130, Diagnostic Code 9434 (2017). 4. The criteria for an increased rating higher than 30 percent for major depressive disorder, claimed as secondary to fibromyalgia, from February 26, 2014, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.2, 4.3, 4.40, 4.45, 4.7, 4.130, Diagnostic Code 9434 (2017). 5. Entitlement to an effective date earlier than May 3, 2005 for major depressive disorder, claimed as secondary to fibromyalgia, have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1988 to September 1992 in the United States Navy; he served in Southwest Asia. This appeal comes to the Board of Veterans’ Appeals (Board) from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In April 2013, the RO denied a rating greater than 10 percent for fibromyalgia and denied a compensable rating for bilateral hearing loss. In August 2016, the RO granted service connection for a chronic acquired psychiatric disorder diagnosed as major depressive disorder (hereafter major depressive disorder, and assigned a 10 percent rating, effective May 3, 2005 and a 30 percent rating, effective February 26, 2014. The Veteran expressed timely disagreement with the ratings and effective date for service connection. In March 2017, the RO denied entitlement to a TDIU. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2018; a transcript has been associated with the claims file. Duty to Notify and Assist Neither the Veteran nor his representative identified any shortcomings in fulfilling VA’s duty to notify and assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board thus finds that further action is unnecessary under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. The Veteran will not be prejudiced because of the Board’s adjudication of the claims below. I. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information, lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Fibromyalgia: 10 percent between July 6, 2010 and March 10, 2016 Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Fibromyalgia is rated under Diagnostic Code 5025. See 38 C.F.R. § 4.71a. Ratings of 10, 20, and 40 percent are granted for symptoms of widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud’s-like symptoms. Id. Widespread pain mean pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities. Id. A 10 percent evaluation requires continuous medication to control the symptoms. A 20 percent evaluation is when the symptoms are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time. A 40 percent evaluation is warranted when the symptoms are constant, or nearly so, and they are refractory to therapy. A higher rating will not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Conversely, if [the applicable DC] does specifically contemplate the effects of medication, then Jones is inapplicable.” McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). The effective date of an increased rating is the date of ascertainable increase or date of receipt of claim, whichever is later, under 38 U.S.C. § 5110 (a) and 38 C.F.R. § 3.400 (o)(1); unless the ascertainable increase precedes receipt of the claim, in which case the effective date is the date of ascertainable increase if the claim is received within one year thereof under 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2). Harper v. Brown, 10 Vet. App. 125, 126 (1997). The RO received the Veteran’s claim for an increased rating for already service-connected fibromyalgia on July 6, 2011. In April 2010, the Veteran underwent a VA examination for his service-connected fibromyalgia. The examiner noted the Veteran’s reports of whole body pain in multiple joints on a daily basis. He experienced muscle cramping and stiffness, fatigue from lack of sleep, intermittent headaches, and irritable bowel symptoms with multiple daily bowel movements. The Veteran reported using multiple medications including opiod pain medication. On examination, the examiner observed painful joint movement and multiple tender points. The examiner confirmed the diagnosis of fibromyalgia and described the symptoms as “quite intense and not relieved by current medications… and getting progressively worse.” On September 9, 2011 the Veteran had a compensation and pension (C&P) examination for his fibromyalgia. His symptoms began around 1994, he began receiving treatment in 2004 and his response to the treatment was “fair.” Medication was being taken to control the symptoms. At the time he experienced sleep disturbance, diarrhea, musculoskeletal symptoms, and had several trigger points; all symptoms were constant or nearly constant. Symptoms of pain were present on both sides of his body, above and below the waist, and it affected the axial skeleton and extremities. He reported that standing makes the pain worse, particularly in his back and lower body, and that medication was not really working; in fact, he had been off medication for 3 weeks and claimed no difference in his symptoms. Under signification findings, the examiner stated, This patient jumps when I touch his skin. This applies to the “tender points” of fibromyalgia and anywhere else I touch him- above the belt- on both sides of the body. This patient has Class III obesity also known as severe, extreme, or morbid obesity. At the time the Veteran was employed as an auto body instructor for the previous year or two. He did report missing 2-3 weeks of work over the past 12 months. The examiner said the fibromyalgia had “significant effects” on his occupation due to problems with lifting and carrying objects; and that his daily life activities were also affected. In conclusion the examiner said, This patient would be able to tolerate his pain much better if he wore his CPAP at night. His morbid obesity is [sic] will continue to cause degenerative changes and increasing pain in his joints. When Rheumatology diagnosed him with fibromyalgia, the patient did not get his X-rays or lab that was ordered. He has not had the lab, which was normal except his TSH, which needs working up. A second exam took place in March 2016. The Veteran continued taking medication and he went through treatment which included a back brace, knee, ankle, and finger sleeves. Therapy was not helping. Symptoms at this time were widespread musculoskeletal pain, stiffness, muscle weakness, fatigue, and sleep disturbances. Symptoms were present about 1/3 of the time, and the Veteran stated he could still not sleep. He was also tender throughout his entire body. Like the previous examiner, the physician here said the impact on his ability to work was “the inability to do physical activity because of pain and stiffness with acute attack.” The Board finds that the April 2013 rating decision continued a 10 percent rating listing the only symptom as “fatigue” even when the examination report clearly stated that widespread musculoskeletal pain was present throughout the entire body with symptoms such as tender points, sleep disturbance, and stiffness. Most importantly, the examiner noted that pain is constant or nearly constant. By the March 2016 examination, symptoms remained widespread and were present at least 1/3 of the time; but by then the symptoms were refractory to therapy. In the June 2016 rating decision, the RO granted the Veteran a 40 percent rating for fibromyalgia based on the widespread musculoskeletal pain that was refractory to therapy, with additional symptoms of fatigue, sleep disturbance, and stiffness. The RO noted that the symptoms were not constant or nearly constant, but awarded the 40 percent rating regardless, making this rating decision inconsistent with the April 2013 rating decision that denied a rating higher than 10 percent. The September 2011 examination clearly showed widespread pain and tenderness that was constant or nearly so, and that medication did not work and treatment results were merely “fair.” Beginning in September 2011, the medical evidence supports a higher rating since the Veteran’s symptoms were present anywhere from 1/3 of the time to all of the time, and because therapy was either a total failure or mostly so given that his medications were not providing any relief. Therefore, the Board finds that a 40 percent rating is warranted beginning on July 6, 2010, one year prior to the date the claim was received as the evidence factually ascertained an increase at that time. 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). A 40 percent rating for fibromyalgia is warranted when there is widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headaches, irritable bowel symptoms, depression, anxiety, or Raynaud’s-like symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5025. Because the Veteran’s symptoms of fibromyalgia were widespread throughout his musculoskeletal system at the April 2010 and September 2011 examination, and because the symptoms were constant or near constant, refractive of treatment and considering the benefit of the doubt (See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990)), the Board finds an increased rating to 40 percent, but no higher, for fibromyalgia, is warranted. 2. Fibromyalgia: 40 percent from March 10, 2016 During the Board hearing in March 2018 the Veteran’s representative called into question the examination from April 2006 and said that the results of the examination warranted a higher rating than 10 percent from that time. The Veteran testified that he was still working as an auto body instructor, but that it was getting harder since he struggled to do physical activity, and had issues holding onto tools due to his weakness and fatigue. He continued to have issues sleeping due to pain, and said he often slept on the couch so he would not disturb his wife. The lack of sleep made him tired all day, as did his medication; but he said if he did not take medication he would be in bad mood due to the pain. The representative asked the Board to consider an extraschedular rating for fibromyalgia. Two buddy statements were submitted on March 2, 2018. The first statement was from the Veteran’s wife, the other from a friend. They both report the Veteran’s issues with joint pain, the difficulty he had walking, his absence from work, the medications not working, and his sleep issues. Both also discuss non-service connected ear pain in some detail. A third examination took place in April 2018. The Veteran reported worsening pain over the previous three years; he said the pain was constant, it lasted longer, it was more intense, and he also experienced fatigue, insomnia, headaches, and diarrhea. Additional symptoms included irritable bowel symptoms, stiffness, and widespread musculoskeletal pain that was constant or nearly constant. Fewer tender points were noted than previous examinations. He was still working at the time, although he missed 2-4 weeks of work in the past 12 months, and he had issues with prolonged walking and standing, repetitive heavy lifting, pushing, pulling, bending and kneeling due to symptoms of fatigue and widespread muscle and joint pain on moderate exertion. The most recent examination was held in September 2018. The Veteran reported “I have constant joint pain and stiffness all over. My muscles also ache and cramp up. My left hand is always tingling and it locks up as well. I’m starting to have less movement and a loss of control in my left hand.” His medications continued to do little, and he said they made him sleepy; treatment was ongoing. Symptoms at this examination were the same as they were before: widespread pain, stiffness, fatigue, sleep disturbances, headaches, depression, and irritable bowel symptoms. Stiffness and pain were most intense in the mornings, and headaches occurred 5 times a week and lasted up to 2 hours. The symptoms remained constant or nearly constant. Tender points were present in the neck region, trapezius muscle, supraspinatus muscle, gluteal, greater trochanter, knees, and in his hands—much like the previous exam. Again, issues with standing, sitting, walking, heavy lifting, kneeling, squatting, and climbing were noted. A 40 percent evaluation is the highest possible evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5025. Nevertheless, the Veteran’s representative asked the Board to review the claim to decide whether it should be referred to the Under Secretary for Benefits or the Director, Compensation Service, for consideration of an “extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.” 38 C.F.R. § 3.321 (b)(1) (2016). Extraschedular consideration involves a three-step analysis. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, 572 F.3d 1366 (Fed. Cir. 2009). The first element requires a finding that the evidence “presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate.” See id. at 115. In order to determine whether a disability is “exceptional or unusual,” there “must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability.” Id. “[I]f the [rating] criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required.” Id. In this case, the schedular evaluation noted above is adequate. The symptoms of the Veteran’s fibromyalgia are contemplated by the schedular criteria. In each examination the Veteran has endorsed musculoskeletal pain, tender points throughout his body, stiffness, irritable bowel symptoms, fatigue, sleep disturbances, depression, and headaches. Each examiner noted that this pain is at least nearly constant, and that therapy is refractory. The September 2011 examiner attributed some pain to the Veteran’s weight causing pain in his joints, and recommended the Veteran always wear his continuous positive air way pressure (CPAP) device at night to alleviate some pain. So, there are other factors that may cause additional pain. The Board has also considered the lay statements submitted by the Veteran’s wife and friend/former co-worker. Neither describe symptoms not already contemplated in the ratings schedule. He did begin to receive early retirement from the Medical Board of Public Employees’ Retirement System of Mississippi starting on April 26, 2018. However, the evidence submitted does not specifically state that fibromyalgia is beyond what is contemplated in the rating schedule, nor does it explain fibromyalgia as the sole cause for early retirement. Medical evidence, and lay evidence contemplate the Veteran’s current symptoms. Each medical examiner did not endorse additional symptoms, and the Veteran himself has not described anything other than what is listed in the exams or contemplated in the rating schedule. Therefore, the Board does not find that extraschedular consideration is warranted, and a rating of higher than 40 percent for fibromyalgia is denied. 3. Major Depressive Disorder: 10 percent between May 3, 2005 and February 26, 2014 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. 38 C.F.R. § 4.126. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. Id. 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. Id. Under the General Formula, a 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130. Under the General Formula, a 30 percent rating is assigned 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). Id. Under the General Formula, a 50 percent rating is assigned occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short -and long- term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned 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 rating is assigned when 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 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. Id. During the course of this appeal, the rating criteria were revised to update references pertinent to the American Psychiatric Association, Diagnostic and Statistical Manual for Mental Disorders (5th ed.) (DSM-5). Those changes included removal of the multi-axis system, Global Assessment of Functioning (GAF) score method of assessment, but did not invalidate the previously reported GAF scores. No additional substantive revisions have been made to VA’s General Rating Formula for Mental Disorders. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). A higher rating will not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Conversely, if [the applicable DC] does specifically contemplate the effects of medication, then Jones is inapplicable.” McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). The Veteran originally filed a claim for service connection for PTSD. He has been diagnosed with major depressive disorder which is secondary to his service connected fibromyalgia. A statement was submitted on June 7, 2005 in which the Veteran explained how his life since the Navy has been stressful. He discussed how he feared for his life, how “shock trials” during service frightened him, that he began having issues sleeping, and he also stated that once he “got home I stayed in pain every day, and the VA medical center gave me pain pills to take every day and Zoloft for PTSD.” His first psychiatric examination was on April 12, 2006. In reporting on the Veteran’s military history and stressor, the examiner wrote, His military history, the way he describes it, is at times vague. I had some degree of difficulty in pinning him down in terms of exactly what issue it was that he was wishing to be considered today in terms of the reason for the C&P exam. He vaguely mentioned PTSD, and so we proceeded really along those lines and evaluation for other mental disorders . . . . Prior to overseas stationing, the vessel underwent some degree of live fire exercises in Guantanamo, Cuba. The Veteran describes this as the most traumatic experience in terms of loud noises and concussive impacts on the ship. The examiner also points out the Veteran did experience stress and anxiety about chemical attacks, but that he did not witness any death or experience actual fear of physical danger. At that time the Veteran had a girlfriend and children that made him happy. He did display some anxiety, but he was coherent, logical and goal oriented with an intact memory. He showed no disturbed behavior, but did endorse sleep issues. The examiner found no signs or symptoms of PTSD; he diagnosed the Veteran with mild dysthymia. A Board hearing was provided in September 2008 in which the Veteran described his military occupational specialty (MOS) as being a firefighter on-board Naval vessels. He said he always had a fear of burning or suffocating and that he did not like when the ship flooded and he had to act to get the water out. He also described sleep issues, but was not clear about nightmares when asked directly; he just stated he did not sleep a lot in the Navy and still does not. Additionally, he was taking medication for PTSD and said he has gone to the mental hygiene clinic in Memphis, but he never heard anything more about treatment. An additional examination took place on March 31, 2010. The examiner mentioned that the Veteran did not have any hospitalizations for mental health issues, and mentioned the Veteran’s group therapy in which the Veteran discussed symptoms with other Veterans and told the examiner most of the group experienced the same symptoms. However, when prompted, the Veteran could “not pinpoint a single precipitating event other than fear of swimming during boot camp.” He was again very vague about his nightmares, and at one point told the examiner he did not like being with people but then told the examiner he recently got marries. Additionally, he could not pinpoint what was making him nervous. The Veteran was alert and oriented, had no delusions or hallucinations, no suicidal or homicidal ideations, he had good hygiene, good memory, with fair impulse control. He was a bit anxious, a little irritable, and had poor eye contact. Once again, the Veteran was not diagnosed with PTSD. The examiner further noted the Veteran seemed to regurgitate symptoms he heard about from others, and was evasive in responses and overreported symptoms. A third VA examination was conducted on November 9, 2011. The examiner did not find the Veteran suffered from a mental disorder. He was not on medication, was not attending treatment, and had no mental health appointments. No symptoms of a psychiatric disability were noted. The Veteran did endorse a social life that included time with his family, going out with friends, and participating in hobbies. The examiner did note the Veteran’s frustration with his fibromyalgia which put him “on edge” most days. Pain kept the Veteran from doing some activities and this angered him. Sleep issues were still present. The Veteran did state that fear of death is why he discharged. However, the Veteran did not describe intense feelings of helplessness or horror. He did not describe re-experiencing symptoms that impair functioning. He did state that he sometimes dreams that his ship is sinking or that he is drowning. Neither occurred however. He did not describe significant avoidance behaviors or hyperarousal symptoms that affect his mobility or activities. He did describe some exaggerated startle response. In conclusion, the examiner did not find the Veteran met the PTSD criteria, nor did he describe symptoms that impaired him occupationally or socially. Outpatient records submitted in April 2013 show that the Veteran was in group therapy and taking medication at least as early as December 2012, and he was diagnosed with depression prior to that. In September 2012, the Veteran reported that he had a lack of motivation, felt out of place, his appetite was poor, and he felt depressed due to his pain. He underwent another VA examination in August 2013, this time he was diagnosed with depressive disorder, not otherwise specified (NOS). He was noted as having some occupational and social impairments due to mild or transient symptoms, and he mentioned pain impacting his mood on several occasions. The Veteran also endorsed isolating himself more often, but did have relationships with family and friends. He was fired from his prior three jobs for angry outbursts at customers and also said there were times when he was disinterested in work. Suicidal thoughts were present within the last year. At the start of the examination he had a stutter, but when the examiner pointed it out the stutter began to stop and eventually disappeared altogether. Sleep disturbance was still a problem, he had dreams about drowning or being locked in a small space, he endorsed crying spells 4-5 times a month, he feels worthless and hopeless, and he was no longer interested in activities. The examiner stated that the Veteran had a tendency to over endorse symptoms, and the results of testing did not show a diagnosis for PTSD, and also said the stutter attempt was transparent and that the Veteran continued to endorse any and all symptoms. More mental health records were submitted in August 2013. This time the Veteran said he has thought about running his car into a tree, complained of dysphoria and general anxiety, and was still taking medication. His hygiene was normal, he was logical and goal oriented, did not have delusions or hallucinations, was oriented and alert, was not a harm to himself or others, and had a bland affect and dysphoric mood. These records contained some group therapy sessions that recorded the Veteran as depressed. However, he was getting a new job and stopped therapy sessions in May 2013. Based on the evidence submitted the Board does not find that a rating higher than 10 percent is warranted for the period between May 3, 2005 and February 26, 2014. While the Board must take into consideration the lay evidence submitted by the Veteran (Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)) it must also take into account self-reported inconsistencies when stacked against contemporaneous medical evidence. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Curry v. Brown, 7 Vet. App. 59, 68 (1994). Throughout the examinations the opinion of the expert physicians was consistent in that the Veteran tended to be vague, inconsistent, and over report symptoms of his psychiatric disabilities. This weighs against the Veteran’s credibility, and is a reason why a higher rating is not warranted despite several symptoms of higher ratings being endorsed at times. Every examination during this time frame was skeptical that the Veteran had PTSD and even seemed to question any mental disability; in fact, the November 2011 examination said there was no psychiatric disability present. Despite this, the Veteran received secondary service connection after an examiner opined that his depression was due to his fibromyalgia. A 30 percent evaluation is not warranted because the Veteran did not suffer from occasional decreases in work efficiency due to suspiciousness, panic attacks that happened at least weekly, or mild memory loss. While he did have sleep impairment and depression his impairment was reported to be more related to fibromyalgia than depression. He also was not experiencing panic attacks and showed the ability to function satisfactorily. A 50 percent evaluation is not warranted because the Veteran’s speech has always been normal, he has never endorsed panic attacks, no evidence shows a difficulty in understanding complex commands, he does not have any memory impairment, his judgment was always noted as good, and his mood was mostly not disturbed or unmotivated, and he did maintain social relationships with family and friends. A 70 percent evaluation is not warranted because the Veteran was not deficient in most areas due to suicidal ideation, obsessional rituals, illogical, obscure, or irrelevant speech; near-continuous panic attacks or depression impacting his ability to function independently, impaired impulse control, disorientation, neglect of hygiene, inability to adapt to stress, or inability to establish and maintain relationships. Examiners found he had relationships with his family and friends, that he was capable of dealing with his finances and caring for himself (he even says he has hobbies and cooks), and despite mentioning driving his car off the road and saying he would threaten people, the examiners found he was not a danger to himself or anyone else. And a 100 percent evaluation is not necessary because major depressive disorder has not rendered the Veteran totally socially and occupationally impaired. Every exam showed he was able to care for himself, he did not suffer from memory loss, had no delusions or hallucinations, and was never a threat to himself or others. Based on the evidence prior to the addendum opinion, the Board finds that a rating greater than 10 percent was not warranted between May 3, 2005 and February 26, 2014. 4. Major Depressive Disorder: 30 percent from February 26, 2014 On February 16, 2014 the Board requested a medical opinion asking whether the Veteran had a mental disorder, and if so whether it was service related. Dr. M diagnosed the Veteran with major depressive disorder, but said that it was not service related. However, Dr. M was asked for an addendum opinion, and in March 2014 he stated that the major depressive disorder was aggravated by the Veteran’s service connected fibromyalgia. Another exam took place in March 2016. The examiner diagnosed the Veteran with major depressive disorder, and noted that it did not impact his occupational or social life. Symptoms present at the time were depression, chronic sleep impairment, flattened affect, and disturbances in motivation and mood. The Veteran self-reported “self doubt” from 1993, said he was “giving up,” had some insomnia, low energy, was impatient, hated crowds, threatened strangers, and had suicidal ideation within the past year. The examiner concluded that his condition was nearly in full remission, and that he was not a threat to himself or others. More outpatient records were submitted in October 2016 that showed the Veteran’s sleep was improving; but he remained depressed, irritable, and anxious; he did not have suicidal ideations, psychosis, or mania. A September 2016 mental status examination found the Veteran to be well groomed, alert and oriented, had good attention, normal speech, no hallucinations or delusions, no suicidal or homicidal ideations, and had good judgment and insight with a dysphoric mood and slight restricted affect. The Veteran provided some testimony relevant to the major depressive disorder at the March 2018 hearing. He testified about anger, which was mostly due to when he did not take his medication. He also had issues dealing with people and will often leave crowded places early so he can be alone. Additionally, he said he was going to VA for mental health treatment prior to 2005. The examination from May 10, 2018 noted the Veteran’s impairments in work and social life had increased. Although he did maintain a relationship with his family, have hobbies, and would go places like church. He was retiring soon due to his disabilities. Furthermore, he was not receiving inpatient treatment, he was not suicidal, but he did describe feeling worthless, hating crowds and people, feeling lethargic, and continuing to experience insomnia. His symptoms at this time were depression, anxiety, chronic sleep impairment, mild memory loss, and disturbed mood. The most recent examination was in September 2018. His overall picture of impairment had improved. This time he did say he was more distant from his family, continued to say he did not like crowds, but he did socialize. His mood was depressed, he had little interest in activities, and had thoughts of dying. His symptoms were depression, anxiety, chronic sleep issues, disturbed motivation and mood, trouble maintaining relationships, and suicidal ideations. He was oriented, well dressed, displayed good speech, judgment and insight, but was a little depressed. He did deny suicidal and homicidal ideations. The examiner found that he was not a threat to anyone or himself, that the Veteran was being treated intermittently, and that he had a tendency to be vague with his symptoms. The extensive records submitted since February 2014 support the assignment of a 30 percent rating but not higher. Despite mentioning suicidal or angry behavior the examinations have all stated that the Veteran is not a threat to himself or others. Also, while the Veteran states he does not enjoy crowds or people he has continued to talk about his social relationships and outings. He also does not experience panic attacks, anxiety, suspiciousness, hallucinations or delusions, he has good judgment and insight, his speech is normal, he does not display memory loss, he does not have obsessional rituals, he has never been disoriented, displayed grossly inappropriate behavior, or showed an inability to understand complex commands. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (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, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, 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 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Although the Veteran has a few symptoms that are found in higher rating criteria his overall disability is that of a 30 percent evaluation. As stated above, it is the total evaluation that the Board must consider. A 50 percent evaluation is reserved for symptoms of panic attacks, struggles to comprehend complex commands, poor memory, impaired judgment and thinking, and difficulty establishing and maintaining relationships. None of these symptoms are present in the Veteran, and even though he tends to endorse struggles with relationships this has been noted as a possible over reporting of symptoms by medical experts. A 70 percent evaluation is not warranted for similar reasons. The Veteran worked for most of this appeal period, he did miss work but it was, as he reports, mostly due to pain. He maintained relationships, his judgment, thinking, and speech were all good, he was never disoriented, and did not show that he struggled in stressful situations. At times he mentioned suicidal ideation, but again, these were flagged as possibly over reported and examiners all noted that he was not a threat to himself or others. A 100 percent evaluation is not warranted because he is not totally socially and occupationally impaired due to grossly inappropriate behavior, gross impairment in thoughts or communication, persistent delusions or hallucinations, and he is not a danger to himself or others. The Veteran has displayed symptoms most consisted with a rating of 30 percent from February 26, 2014 onward. He has shown some impairments due to depression and chronic sleep impairment, to go along with other symptoms such as his dislike of social situations. But, overall, he can function by himself, has relationships, and does not have more severe symptoms warranting a hire rating. Therefore, a rating higher than 30 percent from February 26, 2014 for major depressive disorder is denied. II. Effective Date Generally, the effective date for service connection is the date of receipt of the claim or the date entitlement arose, whichever is later, unless otherwise provided. 38 U.S.C. § 5110(a); 38 C.F.R. 3.400. Entitlement arises on the date the claimant meets the basic eligibility criteria. For direct service connection claims, if the claim is received within one year of separation, the date of entitlement will be the day after separation commenced. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The Veteran filed his claim for PTSD on May 3, 2005 which the RO properly used as the effective date for his benefits. 38 U.S.C. § 5110(a); 38 C.F.R. 3.400. The earliest date upon which service connection may be granted for a psychiatric disorder is the date after service if a veteran files his or her claim within one year of separation. Id. Other than that, service connection is the latter of the date of filing or the date entitlement arose. Id. In August 2002, the RO received a claim for service connection for memory loss. After development of evidence, the RO denied service connection for memory loss in August 2003. The Veteran expressed timely disagreement in April 2004. The RO provided a statement of the case in December 2004, but the Veteran submitted a substantive appeal dated in March 2005 and noted as received on May 3, 2005 that was untimely, and the August 2003 rating decision is final. The RO considered the statement in the substantive appeal as new claim for service connection for an acquired psychiatric disorder. There has not been a showing that a formal or informal claim was received prior to May 3, 2005. Although the Veteran did file for memory loss, that claim was denied and made final because the December 2, 2004 statement of the case (SOC) was not timely appealed. The Veteran had 60 days from the SOC to file his certification for appeal, or the remained of the one-year period after the mailing of the rating decision, but he did not do so until 5 months after the issuance of the SOC. See 38 C.F.R. § 20.302(b)(1). His certification of appeal was not filed until May 3, 2005, and then it was properly treated as a new claim. Since the Veteran did not timely file a Form 9 to the December 2, 2004 SOC, his appeal closed and his Form 9 was treated as a new claim. It is therefore on the date of that new claim entitlement arose. Because May 3, 2005 was the date of the late Form 9 it was properly treated as a new claim and thus the proper effective date is May 3, 2005. An effective date earlier than that is denied. REASONS FOR REMAND 1. Compensable Rating for Bilateral Hearing Loss is remanded. 2. Entitlement to a TDIU is remanded. In the March 2018 hearing, the Veteran asserted that his bilateral hearing loss has increased in severity since the Veteran was last examined by VA in March 2016. Along with this statement, the Veteran’s last audiological examination also showed deteriorating results on the Maryland CNC test. Additionally, the puretone threshold testing was deemed “not valid for rating purposes.” For these reasons, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his bilateral hearing loss. Finally, because a decision on the issue of bilateral hearing loss of could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. A remand of the claims for TDIU is required. If the Veteran receives a compensable rating for TDIU is he will be elligible for schedular TDIU. Therefore, a decision for TDIU here may be prejudicial to the Veteran. The matter is REMANDED for the following action: 1. Afford the Veteran the opportunity to identify or submit any additional relevant evidence and argument in support of his claims on appeal. Request that he identify any other relevant treatment that he has received or is receiving, and request that he forward any additional records to VA to associate with the claims file or provide VA with authorization to obtain such records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to the bilateral hearing loss alone and discuss the effect of the Veteran’s bilateral hearing loss on any occupational functioning and activities of daily living. 3. The RO is to readjudicate the issue on appeal. If the benefit being sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Harner, Associate Counsel