Citation Nr: 18146948
Decision Date: 11/02/18	Archive Date: 11/02/18

DOCKET NO. 16-05 002
DATE:	November 2, 2018
ORDER
Entitlement to a rating in excess of 30 percent for dermatitis is denied.
Entitlement to an effective date earlier than July 28, 2014 for the grant of a 30 percent rating for dermatitis is denied.
Entitlement to a compensable rating for bilateral hearing loss is denied.
Entitlement to an effective date earlier than September 29, 2005 for the grant of service connection for bilateral hearing loss is denied.
Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied.
New and material evidence has been submitted; the claim of entitlement to service connection for a right knee disability is reopened.  To this extent only, the claim is granted.
Entitlement to an effective date earlier than April 29, 2013, for the grant of service connection for post-traumatic stress disorder (PTSD) is denied.
Entitlement to an effective date earlier than April 29, 2013 for the grant of service connection of tinnitus is denied.
Entitlement to an initial rating of 70 percent for PTSD is granted.
Entitlement to an initial rating in excess of 10 percent for tinnitus is denied.
Entitlement to a separate award of service connection for insomnia is dismissed.
Entitlement to service connection for arthritis is dismissed.
REMANDED
Entitlement to service connection for a left knee disability is remanded.
Entitlement to service connection for a right knee disability, to include as secondary to service-connected hypertension, is remanded.
Entitlement to service connection for headaches is remanded.
Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.
FINDINGS OF FACT
1. The Veteran’s dermatitis has affected between 20 and 40 percent of his body, but has not required systemic therapy.
2. The Veteran filed a claim for increased compensation for dermatitis that was received by VA on July 28, 2014; he was subsequently granted an increased 30 percent rating, effective on that date.  It was not factually ascertainable that the criteria for a 30 percent rating were met in the year prior to the July 28, 2014 claim for an increase, nor is there any probative evidence that the Veteran submitted any communications prior to that date requesting increased compensation for dermatitis.
3. On VA audiological testing in June 2015, the Veteran’s hearing acuity was level I in both his right and left ear.
4. The previously submitted claim for service connection for left ear hearing loss was denied in an October 2006 rating decision.  He did not appeal that decision, nor did he submit new and material evidence within one year of that decision.
5. The Veteran next filed an application to reopen the claim for left ear hearing loss, which was received by VA on July 28, 2014. In a July 2015 rating decision, service connection for left ear hearing loss was granted and combined with previously granted right ear hearing loss, which had been assigned an effective date of September 29, 2005. There is no probative evidence that he submitted any communications prior to that date requesting a determination of entitlement to benefits for hearing loss.
6. The preponderance of the evidence is against a finding that the Veteran suffers from GERD that is related to service.
7. In an October 2006 rating decision, the RO denied service connection for a right knee disability. The Veteran did not timely appeal this decision, nor did he submit new and material evidence within one year of the decision.
8. Additional evidence has been received since the October 2006 rating decision that relates to an unestablished fact that is necessary to substantiate the claim for service connection for a right knee disability.
9. The previously submitted claim for service connection for PTSD was denied in a November 2007 rating decision. The Veteran did not appeal that decision, nor did he submit new and material evidence within one year of that decision.
10. The Veteran next filed an application to reopen the claim for PTSD, which was received by VA on April 29, 2013. There is no probative evidence that he submitted any communications prior to that date, and subsequent to the November 2007 final decision, requesting a determination of entitlement to benefits for PTSD.
11. The Veteran filed an application for tinnitus, which was received by VA on April 29, 2013. There is no probative evidence that he submitted any communications prior to that date requesting a determination of entitlement to benefits for tinnitus.
12. The Veteran’s PTSD has been productive of occupational and social impairment, with deficiencies in most areas.
13. The Veteran’s service-connected tinnitus is assigned a 10 percent rating, which is the maximum rating authorized under Diagnostic Code (DC) 6260.
14. The Veteran does not have a separately diagnosed insomnia disorder; rather, insomnia is a symptom of his service-connected PTSD.
15. The Veteran has not made a specific allegation of fact or law concerning his claim for service connection for arthritis. 
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 30 percent for dermatitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.118, DC 7806. 
2. The criteria for an effective date earlier than July 28, 2014 for the award of an increased 30 percent rating for dermatitis have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.
3. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.85, 4.86, DC 6100.
4. The criteria for an effective date earlier than September 29, 2005, for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.
5. The criteria for entitlement to service connection for GERD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.303.  
6. The October 2006 rating decision that denied entitlement to service connection for a right knee condition is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 
7. Evidence received since October 2006 rating decision is new and material. Thus, this new evidence warrants reopening the claims of entitlement to service connection for a right knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).
8.  The criteria for an effective date earlier than April 29, 2013, for the grant of service connection for PTSD have not been met.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.
9. The criteria for an effective date earlier than April 29, 2013, for the grant of service connection for tinnitus have not been met.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.
10. The criteria for an initial 70 percent rating for PTSD have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.130, DC 9411.
11. The criteria for an initial rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.87, DC 6260.
12. As insomnia is a symptom of the Veteran’s service-connected PTSD, there is no further error of fact or law at issue. 38 U.S.C. § 7105(d)(5).
13. As the Veteran has not made a specific allegation concerning his claim for service connection for arthritis, there is no further error of fact or law at issue. 38 U.S.C. § 7105(d)(5).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from July 1969 to September 1990.
This appeal arose to the Board of Veterans’ Appeals (Board) from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho.
Service Connection Claims
1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a right knee disability
The Veteran seeks entitlement to service connection for a right knee disability, to include as secondary to a left knee disability. Implicit in this claim is the contention that new and material evidence has been received which is sufficient to reopen previously disallowed claims.
Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed.  38 U.S.C. § 7105(c).  An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim.
New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).
The 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 VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.
Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  Smith v. West, 12 Vet. App. 312 (1999).
The Veteran filed an original claim for service connection for a right knee disability in September 2005, and was denied in an October 2006 rating decision. The Veteran was denied because there was no evidence the disability was related to service. The Veteran was notified but did not appeal the decision. Accordingly, the October 2006 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103.
Subsequently, the Veteran filed the instant application to reopen his claim. As part of the application for service connection, the Veteran submitted documentation from VA medical providers demonstrating that he suffered from and receives treatment for a right knee disability that was potentially related to his service-connected hypertension. Accordingly, the Veteran has submitted new evidence of a previously unestablished element of the claim, and the claim will be reopened. 
2. Entitlement to service connection for GERD
The Veteran contends that he is entitled to service connection for GERD.
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability.  
Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).
In addition, for veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.”  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)).
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record, 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; 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).
After carefully reviewing the record, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection.  As noted above, there is no evidence that the Veteran developed GERD in service. Furthermore, he was not diagnosed with GERD until many years after service. At the Veteran’s May 2018 examination, the Compensation and Pension (C&P) examiner found it less likely than not that the Veteran’s GERD was related to service, as the Veteran suffered only from chest pain and pressure after eating spicy foods—the examiner determined that such reactions were physiologically normal and were associated with symptoms of mucosal injury, but no incidents in service.
The only positive evidence indicating that the Veteran’s symptomatology developed in service are lay statements to that effect. In this regard, the Board acknowledges that the Veteran is competent to relate symptoms within the realm of his personal knowledge, just as he is competent to relate what he has been told by an examiner.  Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  However, the question of whether his current GERD is related to in-service symptoms is a complex medical question, not capable of lay observation.  See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins). Because the evidence does not indicate that the Veteran has the appropriate training, experience, or expertise to provide a medical opinion concerning the etiology of his sleep apnea, he is not competent to comment on its etiology.  The Board acknowledges the Veteran’s claims that his condition stems from service. Unfortunately, he is not competent to substantiate this claim, and there is no other credible evidence substantiating the claim.
In sum, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s current GERD developed in service, or is otherwise related to service. Rather, the most probative evidence establishes that his current GERD developed many years after his discharge from service. Accordingly, the claim for service connection must be denied.
3. Entitlement to service connection for insomnia
The Veteran contends that he is entitled to a separate award of service connection for insomnia.  As noted above, however, he was previously awarded service connection for PTSD.  The probative medical evidence (including, most recently, a December 2013 VA mental disorders examination report) of record demonstrates that chronic sleep impairment and insomnia is a component of the service-connected PTSD, and was considered when rating the disorder.  Esteban v. Brown, 6 Vet. App. 259 (1994). Here, the Veteran is already being compensated for the manifestation of sleep impairment and insomnia; this manifestation is contemplated in the 70 percent rating assigned the service-connected PTSD.  The separate claim of entitlement to service connection for insomnia must therefore be dismissed.  See 38 U.S.C. § 7105(d)(5) (the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed).  
4. Entitlement to service connection for arthritis.
The Veteran contends that he is entitled to service connection for arthritis. As noted above, however, the Board has addressed his claims for service connection for specific joint problems, including bilateral knee disabilities.  The Veteran has made no specific allegation explaining why his arthritis, as a stand-alone disorder, has resulted in an impairment of earning capacity apart from the specific claims mentioned above. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (noting that the term “disability,” as used for VA purposes, refers to a condition resulting in an impairment of earning capacity). The Board has addressed his specific contentions, to include as they may include arthritis of specific joints. Thus, the separate claim of entitlement to service connection for arthritis must therefore be dismissed.  See 38 U.S.C. § 7105(d)(5) (the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed).  
Increased Rating Claims
Disability ratings 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 (Rating Schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.
If two 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 evaluation will be assigned.  38 C.F.R. § 4.7.  The Veteran’s entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).
1. Entitlement to a rating in excess of 30 percent for dermatitis
The Veteran contends that he is entitled to an increased rating for dermatitis.
Dermatitis is governed by DC 7806, and the Veteran currently receives a 30 percent rating. To receive a 30 percent rating, dermatitis must affect 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or require systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. To garner a 60 percent rating, dermatitis must affect more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or require constant or near-constant systemic therapy such as corticosteroids or immunosuppressive drugs during the past 12-month period. 38 C.F.R. § 4.118, DC 7806.
The Board notes that the United States Court of Appeals for Veterans Claims (CAVC) issued a decision in Johnson v. McDonald, 27 Vet. App. 497 (2016) that reversed and remanded an April 2014 decision of the Board denying an increased rating for a skin condition under 38 C.F.R. § 4.118, DC 7806.  VA disagreed with the Court’s decision and appealed it to the United States Court of Appeals for the Federal Circuit (Federal Circuit). In July 2017, the Federal Circuit issued an opinion that reversed the decision by the Court, noting that DC 7806 “draws a clear distinction between ‘systemic therapy’ and ‘topical therapy’ as the operative terms of the diagnostic code.” Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). The Federal Circuit went on to explain that “systemic therapy means ‘treatment pertaining to or affecting the body as a whole,’ whereas topical therapy means ‘treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied.”  Id.  As such, the Board is bound by the Federal Circuit’s interpretation.
DC 7806 also provides that the symptoms at issue can be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801 through 7805), depending upon the predominant disability.  38 C.F.R. § 4.118.  However, there is no evidence that the Veteran’s dermatitis is disfiguring or is equivalent to deep and nonlinear scarring (as is required under DCs 7800 and 7801), and his current 30 percent rating is more favorable than any of the ratings provided under DCs 7802 through 7805. Consequently, none of these DCs are applicable.
The Veteran received an examination May 2015 in which the examiner determined the Veteran suffered from dermatitis, manifested as rashes throughout the back and groin areas, lasting two to three months at a time. The Veteran reported that he utilized topical, anti-fungal medications (specifically Naftin cream) constantly or near-constantly to ameliorate his symptoms; he denied using corticosteroids or immunosuppressive drugs, and there was no indication that systemic therapy of any kind had been required. The examiner determined the Veteran’s skin condition affected 20 to 40 percent of his total body area.
In light of the May 2015 examination findings, the Board finds that the Veteran does not qualify for the higher 60 percent rating, as the condition does not affect more than 40 percent of his total body area or total affected area, and, by the Veteran’s own report, he has not used systemic therapies such as corticosteroids or other immunosuppressive drugs to combat his condition. None of the remaining evidence of record, including the Veteran’s VA and private treatment notes, indicate that the criteria for an increased rating have been. Accordingly, entitlement to a rating in excess of 30 percent for dermatitis must be denied.
2. Entitlement to a compensable rating for bilateral hearing loss
The Veteran contends that he is entitled to a compensable rating for his bilateral hearing loss. For the following reasons, the Board finds that the Veteran is not entitled to a compensable rating.
Disability ratings for hearing loss disability are determined by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss disability evaluations range from zero percent to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. 
The rating schedule establishes 11 auditory acuity levels designated from Level I (for essentially normal hearing acuity) through Level XI (for profound deafness).  VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test.  The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  See 38 C.F.R. § 4.85.  The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss.  The percentage evaluation is found from Table VII by intersecting the vertical column appropriate for the numeric designation for the ear with better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear with poorer hearing acuity.  For example, if the better ear has a numeric designation Level V, and the poorer ear has a numeric designation Level VII, the percentage evaluation is 30 percent.  Id. 
The Veteran contends that his service-connected right and left ear hearing loss disability should be rated higher than the noncompensable evaluation currently assigned to him.  However, the audiograms of record during the appeal period do not support findings that would warrant more than the assigned zero percent (noncompensable) rating under the DC 6100.  38 C.F.R. §§ 4.85, 4.86.  
In June 2015, the Veteran underwent a VA audiology examination. His puretone thresholds, in decibels, averaged 44 hertz in his right ear and 35 hertz in his left ear. The Maryland CNC controlled speech discrimination test revealed speech recognition of 96 percent in his right ear and 94 percent in his left ear.
Based on the results of these examinations, applying Table VI of 38 C.F.R. § 4.85, Roman Numeral I is derived for both ears when intersecting the percentage of speech discrimination row with the puretone threshold average column.  A zero percent evaluation is derived from Table VII by intersecting row I with column I.  Thus, when applying the ratings criteria to the objective audiogram results, a noncompensable rating is warranted.  
The VA examination report does not demonstrate an exceptional pattern of hearing impairment, as the Veteran did not have puretone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000, and 4000 Hertz, or a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  Additionally, there is no examiner certification that the use of speech discrimination testing was not appropriate due to factors such as language difficulties, inconsistent scores, etc.  As such, there is no basis to alternatively rate this claim under Table VIA.  See 38 C.F.R. § 4.85(c).
Consequently, the audiological results of record have resulted in findings corresponding to a noncompensable evaluation.  See 38 C.F.R. §§ 4.85, 4.86.  The Veteran has not alleged that his hearing has worsened since his most recent examination.  Accordingly, his claim must be denied.
3. Entitlement to an initial rating in excess of 30 percent for PTSD

The Veteran contends that his PTSD warrants a rating higher than 30 percent. For the forthcoming reasons, the Board agrees and finds that an increased 70 percent rating is warranted.
The Veteran is in receipt of a 30 percent rating for his PTSD, pursuant to 38 C.F.R. § 4.130, DC 9411.  All psychiatric disabilities are evaluated under a general rating formula for mental disorders.
Under the general rating formula, a 70 percent evaluation 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 situations (including work or a worklike setting); and inability to establish and maintain effective relationships.  Id. 
Finally, a total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.
The symptoms listed in the rating schedule 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.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.”
The Federal Circuit further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.”  Id.  Thus, “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’”  Id. at 118.
As such, the Board will consider both the Veteran’s specific symptomatology as well as the occupational and social impairment associated with the DC to determine whether an increased evaluation is warranted.
As with all claims for VA disability compensation, the Board must assess the credibility and weigh all the evidence, including lay and 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.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert denied, 523 U.S. 1046 (1998).
After reviewing all the evidence, the Board finds that the overall social and occupational impairment caused by the Veteran’s PTSD most nearly approximates impairment warranting a 70 percent rating.
In May 2013, the Veteran’s psychological counselor submitted a note in which she stated that the Veteran suffered from depression, anxiety, and suspiciousness. Furthermore, he suffered from a flat affect, panic attacks several times a week, nightmares/dreams, isolation/avoidance behaviors, memory concentration, anger, inability to get along with others, and anger issues. He suffered from significant deficiencies in some areas such as family relations and adapting to stressful circumstances.
At the Veteran’s September 2013 neuropsychological evaluation, the examiner determined the Veteran exhibited significant levels of depression, anxiety, irritability, and PTSD to such an extent that it would affect his vocational functioning.
At the Veteran’s December 2013 C&P examination, the examiner determined the Veteran’s PTSD rendered him occupationally and socially impaired, due to mild or transient symptoms which decreased the Veteran’s work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. 
Socially, the Veteran was married and he had three children and two stepchildren. Occupationally, the Veteran was employed in maintenance, working 22 hours at a restaurant. Symptomatically, the Veteran suffered from anxiety and chronic sleep impairment.
A private Disability Benefits Questionnaire (DBQ) dated in July 2018 reflects that the Veteran’s PTSD was productive of occupational and social impairment with deficiencies in most areas. The DBQ shows that the Veteran suffered from (among other symptoms) social anxiety and isolation, extreme irritability and aggression, avoidance of crowds, and intimacy issues in his marriage. Occupationally, the examiner noted that the Veteran was fired from or quit any full-time job due to his PTSD. Mentally, the Veteran reported chronic symptoms of hypervigilance and flashbacks; social and relationship deficits; sleep, mood, and motivation disturbances; and daily living and work impairment.
The examiner noted that the Veteran’s current symptoms included depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near continuous panic or depression affecting the ability to function independently; chronic sleep impairment; mild memory loss; impairment and short and long term memory; memory loss for names of close relatives; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances including work or a worklike setting; inability to establish and maintain effective relationships; suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control; persistent delusions or hallucinations; persistent danger of hurting self or others.
In the aggregate, the evidence discussed above demonstrates that the Veteran has suffered from occupational and social impairment, with deficiencies in most areas, throughout the appeal period. In sum, the evidence fairly shows symptoms such as near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively (as demonstrated by his frequent panica attacks); impaired impulse control (characterized by “anger issues”); difficulty in adapting to stressful situations (including work or a worklike setting); and extreme difficulty establishing and maintaining effective relationships. These symptoms are consistent with an increased 70 percent rating under the relevant criteria.
The Veteran does not, however, suffer from symptoms of a severity necessary for a total, 100 percent schedular rating. Notably, his December 2013 VA examination describes his PTSD as productive of no more than transient symptoms.  Moreover, while the Board acknowledges that some of the specific symptoms listed in the 100 percent rating criteria were noted on the Veteran’s July 2018 private DBQ, the examiner’s actual descriptions of the Veteran’s condition were consistent with impairment warranting no more than a 70 percent rating. (For example, while the DBQ listed severe symptoms such as gross impairment in thought process or communication; inability to maintain and establish effective relationships; persistent delusions or hallucinations; grossly inappropriate behavior; and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene, the actual narrative history attached to the DBQ shows that the Veteran did not actually exhibit all of these symptoms. Notably, he reported being married and indicated that he was not complete isolated, and reported being able to perform activities of daily living.) In short, none of the probative evidence of record reflects that the Veteran’s PTSD symptoms have produced total occupational and social impairment at any time during the appeal period. 
Accordingly, when resolving all doubt in the Veteran’s favor, the Board finds that an increased 70 percent schedular rating, but no higher, is warranted for his PTSD, for the entire appeal period.
4. Entitlement to an initial rating in excess of 10 percent for bilateral tinnitus.
The Veteran seeks an initial rating in excess of 10 percent for tinnitus, which is rated under DC 6260.
The RO rated the Veteran’s tinnitus under DC 6260 of 38 C.F.R. § 4.87. This DC provides a maximum rating of 10 percent.  In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005) the CAVC held that earlier versions of DC 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit).  In Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the CAVC erred in not deferring to VA’s interpretation of its own regulations, 38 C.F.R. § 4.25(b) and DC 6260, which limit a veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. 
The Veteran’s service-connected tinnitus has been assigned the maximum schedular rating available for the disorder.  38 C.F.R. § 4.87, DC 6260.  As there is no legal basis upon which to award a higher schedular evaluation for tinnitus (or a separate evaluation for each ear), the Veteran’s appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). 
Earlier Effective Date Claims
1. Entitlement to an effective date earlier than July 28, 2014 for the grant of a 30 percent rating for dermatitis
The Veteran seeks entitlement to an effective date earlier than July 28, 2014 for the grant of an increased 30 percent rating for dermatitis.
Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.
More specifically, according to Harper v. Brown, 10 Vet. App. 125, 126 (1997), in the case of claims for earlier effective dates for awards of increased compensation, three possible effective dates may be assigned: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (the date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (i.e., the date the increase is factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (38 C.F.R. § 3.400(o)(2)). 
In summary, determining the appropriate effective date for an increased rating under the effective date statues and regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received, and, if possible, (2) when the increase in disability actually occurred.  38 C.F.R. § 3.155, 3.400(o)(2).
Here, the RO granted service connection for the Veteran’s dermatitis in an October 2006 rating decision, assigning an initial 10 percent rating. The Veteran was notified of this decision in a letter dated October 25, 2006; however, the Veteran did not appeal the decision or submit new and material evidence with respect to his dermatitis within one year of the decision.  Hence, the October 2006 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103.
The Veteran then filed a claim for increased compensation that was received on July 28, 2014. An increased rating of 30 percent was subsequently awarded, effective on that date.  
The Board has carefully reviewed the record to determine whether any communications by or on behalf of the Veteran were submitted prior to his current effective date that could be construed as a claim for increased compensation for dermatitis.  See 38 C.F.R. § 3.1(p) (2014).  The Board finds that there are no communications of record that could serve as the basis for an earlier effective date under 38 U.S.C. § 5110(a).  As noted above, while the Veteran had submitted an earlier claim for service connection which was granted in October 2006, he did not appeal the initial 10 percent rating for dermatitis in a timely fashion.
The Board has also considered the earliest date in which it is factually ascertainable that an increase in the Veteran’s dermatitis occurred, in particular within one year from the July 2014 claim for increase. However, on review, there is simply no probative evidence demonstrating that the criteria for a 30 percent rating were met prior to the date of claim. See 38 C.F.R. § 4.118. In so finding, the Board has considered the provisions of 38 C.F.R. § 3.157(b) regarding the function of certain medical records serving as informal claims for increase.
In sum, having reviewed all communications in the claims file, the Board finds that there is no probative evidence that the Veteran submitted any formal or informal communications with respect to his dermatitis prior to July 2014 that could be construed as an informal claim for increased compensation, nor is it factually ascertainable that an increase in disability occurred during the one-year period prior to the July 2014 date of claim. See 38 C.F.R. §§ 3.1(p), 3.157(b) (2014).  Thus, there is no legal basis for awarding an effective date earlier than July 28, 2014.
2. Entitlement to an effective date earlier than April 29, 2013, for the grant of service connection for PTSD and tinnitus.
The Veteran seeks entitlement to an effective date earlier than April 29, 2013 for the grant of service connection for PTSD and tinnitus.
The assignment of an effective date for an award of service connection is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400.  Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.
Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form.  Prior to March 24, 2015, VA recognized formal and informal claims.  The amendments also, inter alia, eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen.  See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155 (2016).  The amended regulations, however, apply only to claims filed on or after March 24, 2015.
In this case, the Veteran filed an application to reopen his previously denied claim for service connection for PTSD in April 2013.  Service connection was subsequently granted in a January 2014 rating decision, and an effective date of April 29, 2013, was assigned, based on the date VA received the claim.
The Veteran filed a claim for service connection for tinnitus in April 2013.  Service connection was granted in a January 2014 rating decision, and an effective date of April 29, 2013, was assigned, based on the date VA received the claim.
The Board has carefully reviewed the record to determine whether any communications by or on behalf of the Veteran were submitted prior to his current effective date that could be construed as a claim for service connection for PTSD and tinnitus.  See 38 C.F.R. § 3.1(p) (2014).  The Board finds that there are no communications of record that could serve as the basis for an earlier effective date under 38 U.S.C. § 5110(a).  Although the Veteran had submitted an earlier claim for service connection for PTSD, this claim was denied in a November 2007 rating decision. The Veteran received notification of those denials via a letter dated November 20, 2007, and he did not perfect an appeal. As such, that decision was considered final on November 20, 2008, one year after notification. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103
The Board acknowledges that the record shows the Veteran had symptoms of PTSD and tinnitus prior to the April 29, 2013 effective date. Notwithstanding, while clinical records were previously recognized, in some instances, as informal claims under 38 C.F.R. § 3.157(b) (2014), this applied only if the evidence pertained to examination or treatment of a disability for which service connection had been previously established, or when a claim specifying the benefit sought was received within one year from the date of such examination, treatment or hospital admission.  The Veteran does not assert, and the evidence of record does not reflect, that either situation applies here.
In sum, having reviewed all communications in the claims file, the Board finds that there is no probative evidence that the Veteran submitted any formal or informal communications with respect to his PTSD and tinnitus, subsequent to receiving notice of the prior denial in November 2007 for PTSD and prior to his April 2013 claim.  See 38 C.F.R. § 3.1(p) (2014).  Thus, there is no legal basis for awarding an effective date earlier than April 29, 2013.
3. Entitlement to an effective date earlier than July 28, 2014 for the grant of service connection for left ear hearing loss.
As noted above, the assignment of an effective date for an award of service connection is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400.  Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.
In this case, the Veteran filed an application to reopen his previously denied claim for service connection for left ear hearing loss in July 2014.  Service connection was subsequently granted in a July 2015 rating decision. The RO determined that the rating for left ear hearing loss would be combined with the previously granted right ear hearing loss; thus, an effective date of September 29, 2005, was assigned, based on the date VA received the Veteran’s original claim for service connection.
The Board has carefully reviewed the record to determine whether any communications by or on behalf of the Veteran were submitted prior to his current effective date that could be construed as a claim for service connection for left ear hearing loss.  See 38 C.F.R. § 3.1(p) (2014).  The Board finds that there are no communications of record that could serve as the basis for an earlier effective date under 38 U.S.C. § 5110(a).  As discussed above, the Veteran had submitted an earlier claim for service connection for left ear hearing loss which was denied in an October 2006 rating decision. Although that decision became final on October 25, 2007, one year after notification, the subsequent combing of the Veteran’s left ear hearing loss with his right ear hearing loss cured any problems regarding his effective date. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103
To the extent the record shows the Veteran had symptoms of hearing loss prior to the September 29, 2005, effective date, the Board reiterates that, while clinical records were previously recognized, in some instances, as informal claims under 38 C.F.R. § 3.157(b) (2014), this applied only if the evidence pertained to examination or treatment of a disability for which service connection had been previously established, or when a claim specifying the benefit sought was received within one year from the date of such examination, treatment or hospital admission.  The Veteran does not assert, and the evidence of record does not reflect, that either situation applies here.
In sum, having reviewed all communications in the claims file, the Board finds that there is no probative evidence that the Veteran submitted any formal or informal communications with respect to his hearing loss prior to September 29, 2005.  Thus, there is no legal basis for awarding an earlier effective date.
REASONS FOR REMAND
1. Entitlement to service connection for headaches is remanded.
The Veteran contends that he is entitled to service connection for a headache disorder, secondary to his service-connected PTSD. On October 2018, the Veteran’s lawyer submitted a brief in which he stated that he was attaching a positive medical opinion, dated September 2017, from a private physician. No such document was attached to the brief. Accordingly, a remand is in order so that the VA may request this document from the Veteran and his lawyer.
2. Entitlement to service connection for left and right knee disabilities is remanded.
The Veteran contends that he is entitled to service connection for left and right knee disabilities. Concerning the left knee, in June 2015, a C&P examiner determined the Veteran’s left knee disability was more likely than not related to his time in service. In July 2015, after a clarification request, the examiner abruptly decided the Veteran’s left knee disability was less likely than not related to service, without any explanation or rationale. As such, an additional examination is requested. The examiner is specifically asked to comment upon the Veteran’s in-service complaints of knee pain; the Veteran’s recitation of chronicity of pain; and the Veteran’s diagnosis in November 2011 of chronic partial tears of the MCL and ACL.
Concerning the Veteran’s right knee, the Veteran’s medical records demonstrate that he receives physical therapy and pain treatment for his right knee. The Veteran informed his therapists that he believes his pain stems from the medication for his service-connected hypertension. As such, an examination is in order to determine if the Veteran’s right knee disability is related to his service-connected hypertension, or medications taken for treatment thereof, or, if the Veteran’s left knee joint replacement is found to be service-connected, his left knee disability.
3. Entitlement to a TDIU is remanded.
Lastly, at the Veteran’s July 2018 examination with a private psychologist, he stated he was unable to work due to his service-connected PTSD. Therefore, the issue of a TDIU is raised by the record and is part and parcel of the initial higher rating claims on appeal and is properly before the Board.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). However, as this issue has not been adjudicated in the first instance, a remand is appropriate so that the Veteran can be provided the requisite notice and opportunity to submit evidence.
The matters are REMANDED for the following action:
1. Provide the Veteran the requisite notice to establish a claim for TDIU.
2. Schedule the Veteran for an examination by an examiner who has not previously examined the Veteran to determine the nature and etiology of his right and left knee disabilities. The examiner is asked to review the claims file and provide the following information:

a. Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s knee disabilities are related to his military service. The examiner is asked to specifically discuss the Veteran’s in-service complaints of knee pain; the Veteran’s recitation of chronicity of left knee pain since service; and the Veteran’s diagnosis in November 2011 of chronic partial tears of the MCL and ACL.
b. Whether it is as least as likely as not (a 50 percent probability or greater) that the Veteran’s right knee disability is caused by or aggravated by either his left knee disability or the medicine for his service-connected hypertension.
c. If it is determined that there is another likely etiology for the Veteran’s claimed disabilities, that should be stated.
3. Send a letter of inquiry to the Veteran and his lawyer, requesting the positive medical opinion concerning the Veteran’s claim for service connection for headaches, secondary to his service-connected PTSD from Dr. Homer Skaggs, dated September 2017. Once received, or if no response received an indication of that included in the Veteran’s file, associate the medical opinion with the Veteran’s file.

 
LESLEY A. REIN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Ryan, Associate Counsel