Citation Nr: 18150499 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-30 869 DATE: November 15, 2018 ORDER As new and material evidence has not been received, the appeal to reopen the claim of entitlement to service connection for hypertension is denied. Entitlement to service connection for tinnitus is denied. Entitlement to a rating in excess of 40 percent for residuals of prostate cancer is denied. Entitlement to a compensable rating for erectile dysfunction is denied. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) and chronic adjustment disorder with mixed depressed mood and anxiety is denied. Entitlement to an effective date earlier than December 2, 2014, for the grant of service connection for PTSD and chronic adjustment disorder with mixed depressed mood and anxiety is denied. REMANDED Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In an August 2005 rating decision, the RO denied the Veteran’s claim for service connection for hypertension; no appeal was taken from the determination, and new and material evidence was not received within the one-year appeal period. 2. Evidence added to the record since the August 2005 rating decision denial of service connection for hypertension, does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence is against finding that the Veteran has tinnitus that arose during or is related to his military service. 4. The preponderance of the evidence indicates that the Veteran’s service-connected residuals of prostate cancer has not been manifested by local recurrence of cancer or associated metastasis, urinary frequency with daytime voiding intervals less than one hour or awakening to void five or more times per night, or urinary incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. 5. The preponderance of the evidence indicates that he Veteran’s service-connected erectile dysfunction is productive of loss of erectile power, but not deformity of the penis. 6. The preponderance of the evidence indicates that he Veteran’s service-connected PTSD and chronic adjustment disorder with mixed depressed mood and anxiety has not been productive of functional impairment productive of total occupational and social impairment. 7. On December 2, 2014, VA received a request from the Veteran to reopen a claim of entitlement to service connection for psychiatric disorder. 8. At the time of receipt of the December 2, 2014, claim to reopen, there were no pending or otherwise unadjudicated claims for entitlement to service connection for a psychiatric disorder. CONCLUSIONS OF LAW 1. As new and material evidence has not been received since the August 2005 rating decision, the criteria for reopening the claim for service connection for hypertension are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.303. 3. The criteria for a rating in excess of 40 percent for the residuals of prostate cancer have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.115b Diagnostic Code 7528. 4. The criteria for compensable rating for erectile dysfunction are not met. 38 U.S.C. § 5107; 38 C.F.R. § 4.115b, Diagnostic Codes 7599-7522. 5. The criteria for an initial rating in excess of 70 percent for PTSD and chronic adjustment disorder with mixed depressed mood and anxiety have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.130, Diagnostic Codes 9440-9411. 6. The criteria for an effective date earlier than December 2, 2014, for the grant of service connection for PTSD and chronic adjustment disorder with mixed depressive mood and anxiety have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1968 to September 1970, from January 1991 to October 1991, and from February 2003 to September 2004. These matters come before the Board of Veterans’ Appeals (Board) on appeal of an April 2015 rating decision. In June 2016, the Veteran’s attorney submitted additional evidence. Although the record does not contain a waiver of initial RO consideration of this additional evidence, the Board notes that the issues on appeal were certified after February 2, 2013. Absent an express request from the appellant, the Board is able to proceed with consideration of this evidence in the first instance. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial Agency of Jurisdiction (AOJ) review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of a substantive appeal filed on or after February 2, 2013, unless the claimant or claimant’s representative requests in writing that the AOJ initially review such evidence). In correspondence received in November 2016, the Veteran, through his attorney, raised the issue of entitlement to a TDIU. As such, the Board must consider whether a TDIU is warranted. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased disability rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Also, in November 2016, the Veteran’s attorney submitted additional evidence along with a waiver of initial RO review of the evidence. New and Material Evidence The Veteran is seeking to reopen a claim of entitlement to service connection for hypertension. A claim for hypertension was denied in an August 2005 rating decision. Although the Veteran was notified of the RO’s decision, he did not appeal, and new and material evidence was not received within one year of notice thereof. As such, the August 2005 RO decision is final with respect to the claim for service connection for hypertension. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). As the claim has been previously finally denied, the preliminary question on this appeal is whether the previously denied claim should be reopened. Such is a jurisdictional matter that must be addressed before the Board may consider the underlying merits claim of the claim de novo. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff’d, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). The Board must therefore proceed to analyze whether new and material evidence has been received since the prior final decision. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). New evidence is defined as evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2018). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA’s statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C. § 5108 (2012); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that once new and material evidence has been presented as to an unestablished fact from a previously denied claim for service connection, the claimant will be entitled to the full benefits of the Secretary’s duty to assist, including a medical nexus examination, if one is warranted; it does not require new and material evidence as to each previously unproven element of a claim. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension An August 2005 rating decision denied service connection for hypertension on the bases that such disability pre-existed the Veteran’s last period of active duty service and was not worsened during or as a result of, service. Evidence received since the August 2005 rating decision includes VA treatment records which show treatment for hypertension. Reports of ongoing treatment of hypertension do not have a bearing on whether the Veteran’s hypertension increased in severity during/was aggravated by his last period of active duty service. The evidence added to the record is either cumulative or redundant of the evidence previously of record, or it does not relate to an unestablished fact necessary to substantiate the claim and is not sufficient to raise a reasonable possibility of substantiating the claim. The claim is not reopened. Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 2. Entitlement to service connection for tinnitus The RO issued a Formal Finding of Unavailability of Service Records in December 2009. Specifically, the RO determined that the Veteran’s complete service treatment records for multiple service periods were unavailable for review. In this case there is no allegation of relevant in-service treatment. However, in such cases, VA’s duty to assist and the Board’s duty to provide reasons and bases for its findings and conclusions and to consider carefully the benefit-of-the-doubt rule (see 38 U.S.C. §§ 71204 (d)(1), 5107(b)) are heightened. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Aside from filing his claim for service connection and pursuing the instant appeal, the Veteran has not made any statement describing his tinnitus or attributing his reported tinnitus to an in-service event, injury, or disease. Additionally, he has not alleged that he experienced tinnitus during service or in the one-year presumptive period following his separation from service. The medical evidence of record is silent for any report of, treatment for, or diagnosis related to tinnitus. The Veteran is competent to report tinnitus. Charles v. Principi, 16 Vet App. 370 (2002). Nevertheless, there is no competent evidence that the claimed tinnitus began during service, manifested within the one-year presumptive period following the Veteran’s separation from active service, or that it is otherwise related to service. Accordingly, the claim must be denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Increased Rating Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155 (2012). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §4.21 (2018); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran’s entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2018); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). In determining the present level of a disability for an increased evaluation claim, staged ratings must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. 3. Entitlement to a rating in excess of 40 percent for residuals of prostate cancer The Veteran’s residuals of prostate cancer disability are evaluated under Diagnostic Code 7528. Malignant neoplasms of the genitourinary system are evaluated as 100 percent disabling. 38 C.F.R. § 4.115(b), Diagnostic Code 7528 (2018). Following the cessation of surgical, X-ray, antineoplastic, chemotherapy, or other therapeutic procedure, the evaluation of 100 percent shall continue with a mandatory VA examination at the expiration of six months. If there has been no local reoccurrence or metastasis, as here, the disability will be rated on the residuals as voiding dysfunction or renal dysfunction, whichever is predominant. Id, Note. Voiding dysfunction is evaluated as either urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115(a) (2018). With continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, a 40 percent evaluation is warranted for a disability requiring the wearing of absorbent materials which must be changed two to four times per day. Id. A 60 percent evaluation is warranted for the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. Id. For urinary frequency, a 40 percent evaluation is warranted for daytime voiding interval less than one hour, or; awakening to void five or more times per night. Id. For obstructed voiding, a 30 percent evaluation is warranted for urinary retention requiring intermittent or continuous catheterization. Id. For urinary tract infection, poor renal function is evaluated as renal dysfunction. Id. A 30 percent evaluation is warranted for recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. Id. For renal dysfunction, a 60 percent evaluation is warranted for constant albuminuria with some edema, definite decrease in kidney function, or hypertension at least 40 percent disabling under Diagnostic Code 7101. Id. An 80 percent evaluation is warranted for persistent edema and albuminuria with BUN 40 to 80mg%, creatinine 4 to 8mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Id. A 100 percent evaluation is warranted for regular dialysis or precluding more than sedentary activity from one of the following: persistent edema and albuminuria, BUN more than 80mg%, creatinine more than 8mg%, or markedly decease function of kidney or other organ systems, especially cardiovascular. Id. As the evidence does not establish any renal dysfunction as a residual of the Veteran’s prostate cancer, his residuals have been characterized by voiding dysfunction. In this regard, consideration of an evaluation based on renal dysfunction and urinary tract infection, which is evaluated pursuant to renal dysfunction, is not warranted. On VA examination in March 2015, the examiner noted that the Veteran was diagnosed and treated for prostate cancer in 2004. He currently reported having a voiding dysfunction with urine leakage, which required the use of absorbent material which must be changed 2 to 4 times per day. The voiding dysfunction did not require the use of an appliance. There was increased urinary frequency which was manifested by daytime voiding interval between 1 and 2 hours and nighttime awakening to void 3 to 4 times. There were no signs or symptoms of obstructed voiding. There was no history of recurrent symptomatic urinary tract or kidney infections. He did not have any residual condition or complications due to the metastases or its treatment other than those already documented above. He did have scar related to the surgery, however, the scar was not painful and/or unstable or in the total area was not greater than 39 square centimeters. He did not have any other pertinent physical findings, complications, conditions, signs or symptoms. Throughout the rating period on appeal, the probative evidence, as discussed in detail above, shows that the Veteran’s residuals of prostate cancer are consistent with the current 40 percent evaluation. The evidence of record is against finding that the Veteran’s residuals of prostate cancer was manifested by voiding dysfunction requiring the wearing of absorbent materials which must be changed more than four times per day. Also, urinary frequency is not manifested by daytime voiding interval less than one hour, or awakening to void five or more times per night. Moreover, there is no evidence of obstructed voiding, urinary tract infection, or renal dysfunction. For these reasons, the Board finds that the evidence does not support the criteria for an evaluation in excess of 40 percent, for service-connected residuals of prostate cancer under Diagnostic Code 7528. The Board notes that the Veteran has been shown to have a scar resulting from his prostatectomy. The scar is not shown to be symptomatic in any way. Consequently, the evidence does not support assigning a separate evaluation. See 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2018). An evaluation in excess of 40 percent for residuals of prostate cancer is denied. 4. Entitlement to a compensable rating for erectile dysfunction The Veteran’s service-connected erectile dysfunction has been rated as noncompensably disabling by analogy under 38 C.F.R. § 4.115b, Diagnostic Codes 7599-7522 (2018) for penis, deformity, with loss of erectile power. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. See 38 C.F.R. § 4.31 (2018). Under Diagnostic Code 7522, in order for the Veteran to receive a higher 20 percent rating for erectile dysfunction, physical deformity of the penis with loss of erectile power is required. 38 C.F.R. § 4.115b (2018). A footnote to Diagnostic Code 7522 also indicates the disability is to be reviewed for entitlement to special monthly compensation (SMC) for loss of use of a creative organ under 38 C.F.R. § 3.350(a) (2018). In this case, the Veteran is in receipt of SMC for loss of use of a creative organ. The VA Adjudication Procedure Manual confirms that two requirements must be met before a 20 percent evaluation can be assigned for deformity of the penis with loss of erectile power under Diagnostic Code 7522: (1) the deformity must be evident, and (2) the deformity must be accompanied by loss of erectile power. In sum, the condition is not compensable in the absence of penile deformity. See M21-1, Part III, Subpart iv, Chapter 4, Section I, Paragraph 3.a (last accessed November 13, 2018). On VA examination in March 2015, the Veteran reported the presence of erectile dysfunction. The Veteran was not able to achieve an erection sufficient for penetration and ejaculation (without medication or with medication). Physical examination of the penis, testes, epididymis, and prostate was normal. The examiner did not indicate that the Veteran had any physical deformity of his penis. Upon review of the evidence, the Veteran does not meet the criteria for a 20 percent rating under Diagnostic Code 7599-7522. In this case, the Veteran clearly has loss of erectile power. However, the evidence of record is against finding that the Veteran had any physical deformity of his penis. A compensable rating for erectile dysfunction is denied. 5. Entitlement to a rating in excess of 70 percent for PTSD and chronic adjustment disorder with mixed depressed mood and anxiety The Veteran’s PTSD and chronic adjustment disorder with mixed depressed mood and anxiety is rated under 38 C.F.R. 4.130, Diagnostic Codes 9440 and 9411 (2018). All psychiatric disabilities are evaluated under a general rating formula for mental disorders. A 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. 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. On VA PTSD examination in April 2015, the examiner noted the following symptoms that applied to the Veteran’s PTSD and chronic adjustment disorder with mixed depressed mood and anxiety diagnoses: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, particularly marital relationships. The Veteran denied current suicidal ideation, any history of suicide attempt, and any current homicidal ideation. He did have obsession rituals which interfere with routine activities, particularly hypervigilant checking of his environment for safety. He had impaired impulse control such as unprovoked periods of irritability with no periods of violence. He denied delusions or hallucinations. The examiner determined that the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner also noted that the Veteran was currently married, though his marriage was strained and there was talk of divorce. He reported having a lot of friends from church and being involved in activities in the community. He was on the community board and the Lions club. He worked as a New York City bus driver for 30 years and retired in 2008. A June 2016 PTSD Disability Benefits Questionnaire (DBQ) report, which was completed by a private psychologist reflects the following symptoms: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately or effectively, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, difficulty understanding complex commands, impaired judgment, gross impairment in thought processes or communication, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficult in adapting to stressful circumstances, suicidal ideation in the distant past, obsessional rituals which interfere with routine activities, impaired impulse control, and disorientation to time or place. With regard to impaired impulse control the private psychologist noted that more than once per month the Veteran responded in an angry manner, but would not actually become violent. The private psychologist determined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran was married but stated that he had no friends and that he had difficulty getting along with others. The probative evidence of record is against finding that the criteria for a disability rating of 100 percent have been met or more nearly approximated for the period on appeal. The evidence shows no symptoms of persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, or memory loss for names of close relatives, own occupation, or own name. The Board acknowledges that the private psychologist indicated that the Veteran’s symptoms included disorientation to time or place, which is symptom noted under the criteria for a 100 percent rating. Nevertheless, the presence or absence of specific symptoms, which correspond to a particular rating, is not dispositive. 38 C.F.R. § 4.130 (2016); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The pertinent issue is the level of occupational and social impairment resulting from the Veteran’s symptomatology. In this regard, the April 2015 VA examiner and June 2016 private psychologist both opined that the Veteran’s symptoms resulted in less than “total occupational and social impairment.” Accordingly, notwithstanding that symptom, the record does not at any point reflect that the Veteran’s PTSD was manifested by total occupational and social impairment. For these reasons, the Board finds that a preponderance of the evidence is against a rating of 100 percent for PTSD throughout the period on appeal. Accordingly, a rating in excess of 70 percent for PTSD is denied. Effective Date Under 38 C.F.R. § 3.400(b)(2)(i) (2018), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. The effective date for presumptive service connection will be the date entitlement arose, if a claim is received within one year after separation from active service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2) (2018). “Date of receipt” generally means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r) (2018). Under VA laws and regulations, the effective date following a prior denial based on new and material evidence, other than service department records, is the date of receipt of a new claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(q)(1)(ii), (r) (2018). It is settled law that the effective date for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002) (“the Court thus holds that the effective date statute, 38 U.S.C. § 5110(a), is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed”). In the Sears case, the Court explained that the statutory framework did not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. The Court explained that the term, new claim, as it appeared in 38 C.F.R. § 3.400 (q), means a claim to reopen a previously and finally decided claim. 6. Entitlement to an effective date earlier than December 2, 2014, for the grant of service connection for PTSD and chronic adjustment disorder with mixed depressed mood and anxiety Service connection for a psychiatric condition (described as depression) was denied in a December 2009 rating decision. Although the Veteran was notified of the RO’s decision, he did not appeal, and new and material evidence was not received within one year of notice thereof. As such, the December 2009 decision is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). On December 2, 2014, a claim to reopen service connection for depression was received at the RO. Service connection for PTSD and chronic adjustment disorder with mixed depressed mood and anxiety was ultimately granted in an April 2015 rating decision, with an effective date of December 2, 2014. The RO found that the December 2, 2014 claim to reopen service connection for depression included the claim for service connection for PTSD and chronic adjustment disorder with mixed depressed mood and anxiety. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by VA to be within the scope of the filed claim). The Board notes that the Veteran has not presented any theories to explain why he should be awarded an earlier effective date. The Board has considered whether the Veteran met the requirements for service connection prior to December 2, 2014. However, even if the evidence shows an earlier date of entitlement, the effective date for an award based on a claim reopened after final adjudication cannot be earlier than the date of VA’s receipt of the new claim, as that would be the later of the two dates. Based on the foregoing, the Board concludes that, following the December 2009 rating decision, a formal or informal claim for service connection for a psychiatric disorder was not received prior to the claim submitted on December 2, 2014, the effective date currently assigned. As the weight of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply, and the claim for an earlier effective date is denied. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. As noted earlier, the Veteran through his attorney has raised a claim of entitlement to a TDIU. The record contains an October 2016 letter from Dr. S. B., a vocational consultant at Barnes Rehabilitation Services, indicating that the Veteran was totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service-connected PTSD, prostate cancer residuals, and erectile dysfunction. Thus, the Board finds that the issue of entitlement to a TDIU is part and parcel of the Veteran's increased rating claims. To date, this issue has not been developed or adjudicated by the AOJ. Additionally, the Veteran has not submitted an Application for Increased Compensation based on Unemployability (VA Form 21-8940), which contains necessary and vital information that VA requires before processing TDIU claim. A remand is therefore necessary to afford the Veteran an opportunity to submit the appropriate claims form and to allow for consideration and adjudication of the TDIU claim by the RO in the first instance. The matters are REMANDED for the following actions: 1. Provide the Veteran and his representative notice pursuant to the Veterans Claims Assistance Act (VCAA) as to the issue of entitlement to a TDIU. Additionally, ask him to fully complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to include any part time or occasional employment. 2. Then, readjudicate the Veteran’s claim for entitlement to a TDIU. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. J. A. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Henriquez, Counsel