Citation Nr: 18150779 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-12 282 DATE: November 15, 2018 ORDER Service connection for hypertension is granted. An evaluation higher than 50 percent for obstructive sleep apnea (OSA) is denied. An evaluation higher than 10 percent for residuals of appendectomy (“abdominal scar disability”) is denied. An evaluation higher than 70 percent for posttraumatic stress disorder (PTSD) is denied. An effective date earlier than March 13, 2013, for the award of service connection for OSA is denied. An effective date earlier than September 30, 2014, for the award of a 70 percent rating for PTSD is denied. A total disability rating based on individual unemployability (TDIU) due to service-connected disability is granted. REMANDED The issue of entitlement to a compensable rating for right elbow disability is remanded. FINDINGS OF FACT 1. The probative evidence shows that the Veteran’s hypertension is related to service. 2. Throughout the appeal period the Veteran’s obstructive sleep apnea has required the use of a CPAP, but did not result in chronic respiratory failure with carbon dioxide retention or cor pulmonale or required tracheostomy. 3. The Veteran’s abdomen scar is painful, but is superficial, stable, well healed, and does not result in any additional disabling effects. 4. The Veteran’s service-connected PTSD has been manifested by symptomatology more nearly approximating occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 5. The Veteran filed an original claim of entitlement to service connection for OSA in March 2013, which was granted in a rating decision issued in November 2013, with an effective date of March 13, 2013—the date of the original claim. 6. The November 2013 rating decision is the decision on appeal regarding the OSA claim, and there is no evidence of record to indicate that the Veteran filed an informal claim prior to March 2013. 7. The Veteran filed an original claim of entitlement to service connection for PTSD in November 2010, which was granted in an unappealed rating decision issued in March 2012. 8. The Veteran filed a claim of entitlement to an increased rating for PTSD in September 2014 and was granted an increased rating of 70 percent, with an effective date of September 30, 2014—the date of the increased rating claim. 9. There is no evidence of record to indicate that the Veteran filed an informal claim for an increased rating for PTSD prior to September 2014. 10. There is no evidence of record prior to September 30, 2014, to indicate that the Veteran’s PTSD increased in severity, warranting an earlier effective date of the 70 percent award. 11. The Veteran has met the schedular percentage requirements for TDIU, and the evidence is at least in equipoise regarding whether service-connected disability renders him unable to secure or follow a substantially gainful occupation consistent with his educational and occupational background. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 2. The criteria for a disability rating higher than 50 percent for obstructive sleep apnea have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.97, Diagnostic Code 6847 (2018). 3. The criteria for a disability rating higher than 10 percent for residuals of appendectomy (“abdominal scar disability”) have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804, 7805 (2018). 4. The criteria for a disability rating higher than 70 percent for PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018). 5. The criteria for an effective date earlier than March 13, 2013, for the grant of service connection for OSA, have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 6. The criteria for an effective date earlier than September 30, 2014, for the grant of a 70 percent rating for PTSD, have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 7. The criteria for the assignment of a TDIU have been met. 38 U.S.C § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The record indicates that the Veteran had multiple periods of active service between July 1975 and June 2009. The record also indicates over 30 years reserve service with the U.S. Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of rating decisions by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In December 2016, the Board remanded this matter for additional development. The case is again before the Board for appellate review. Service Connection The Veteran contends that he incurred hypertension during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). Establishing service connection on a direct basis requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Certain disabilities, such as hypertension, may be presumed to have been incurred during active military service if manifested to a degree of 10 percent or more within the first year following 90 days or more of active service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. (millimeters of mercury) or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2018). In this matter, the service treatment records indicate that the Veteran was healthy upon entrance with normal blood pressure readings. They also indicate high blood pressure readings during service. The Veteran was afforded a VA examination in January 2015. The VA examiner confirmed that the Veteran has a diagnosis of hypertension and noted the date of diagnosis as 2009. The examiner concluded that the Veteran’s hypertension manifested within a year of separation. The examiner opined that it is likely that the Veteran’s hypertension is related to service. The rationale provided was that there were multiple blood pressure readings for diagnosis of hypertension within one year of leaving service and that the Veteran used hypertension medication to control his symptoms (i.e., the disorder was at least 10 percent disabling). See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2018). Based on the foregoing, a service connection finding is warranted for hypertension under 38 C.F.R. § 3.309(a). Increased Rating Disability evaluations (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 the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Obstructive sleep apnea The RO granted service connection for OSA in a November 2013 rating decision, assigning a 50 percent disability rating, with an effective date of March 13, 2013—the date of the claim. As stated in the December 2016 Board remand, the November 2013 rating decision had not become final, therefore, the appeal period commences the date the claim was filed—March 2013. The Veteran’s sleep apnea is rated under 38 C.F.R. § 4.97, Diagnostic Code 6847. As he has been rated as 50 percent disabled throughout the appeal period, the Board will limit its discussion to whether the next-highest rating under Diagnostic Coe 6847 of 100 percent has been warranted. A 100 percent rating is warranted for sleep apnea that causes chronic respiratory failure with carbon dioxide retention or cor pulmonale, or requires tracheostomy. A March 2013 medical evaluation board proceeding indicates that that Veteran was diagnosed with OSA in June 2008. The results of a February 2013 VA sleep disorder consultation showed rapid eye movement (REM), predominant obstructive sleep apnea hypopnea syndrome, successful continuous positive airway pressure (CPAP) titration with good results on nasal mask, and excessive daytime sleepiness by Epworth. There was no periodic limb movement syndrome nor was there evidence of REM sleep behavior disorder (RBD). The Veteran complained of snoring, stopping breathing at night, AM headaches, daytime sleepiness, feeling sleepy while driving, feeling the urge to move his legs at night and disturbing dreams. The examiner concluded that the Veteran’s OSA does not impact his ability to work. The examiner recommended that the Veteran use a CPAP nightly. A November 2013 VA sleep apnea Disability Benefits Questionnaire (DBQ) shows that the Veteran has been prescribed a continuous positive airway pressure (CPAP) machine, requires the use of a breathing assistance device such as a CPAP machine, and that continuous medication is not required for control of this disability. He reported feeling more energetic, stating he used to be tired during the day. The examiner concluded that the Veteran’s OSA does not impact his ability to work. A December 2014 DBQ indicates that continuous medication is not required for control of this disability and that he does require the use of a breathing assistance device such as a CPAP machine. The examiner concluded that the Veteran’s OSA does not impact his ability to work. An April 2015 private medical evaluation shows the Veteran treated his OSA with a CPAP machine for the past two years. As stated above, the 100 percent rating is not warranted unless sleep apnea causes chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. Here, the evidence does not indicate respiratory failure, cor pulmonale, or a tracheostomy requirement. As such, a rating of 100 percent has not been warranted during the appeal period. As the preponderance of the evidence is against the assignment of a higher initial rating, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b). Abdominal scar disability During the pendency of the appeal, the criteria for evaluating certain disabilities of the skin were revised, effective August 13, 2018. See 38 C.F.R. § 4.118, (Diagnostic Codes 7801, 7802, 7805, and 7806). The amended regulations are only applicable to claims received on or after August 13, 2018, or where a claimant requests readjudication under the new criteria. See 83 Fed. Reg. 32592 (August 13, 2018) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7805, 7806). The Veteran has not specifically requested consideration under the revised criteria of Codes 7801, 7802, 7805, or 7806. However, it is VA’s intent that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. As such, and even though the amended regulations are not substantially different from the prior versions and would not result in a different outcome, the Board will consider both versions. Diagnostic Code 7804 has not been revised during the pendency of the appeal. Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful, with a maximum 30 percent rating warranted for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1). If one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (2). Scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7805, may also receive an evaluation under Diagnostic Code 7804. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (3). Criteria effective prior to the August 13, 2018, revision Under Diagnostic Code 7801, a 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear, at least 6 square inches (39 square centimeters). Id. Higher ratings are available for deep and linear scars that affect a larger area, measuring at least 12 square inches. A deep scar is one associated with underlying soft tissue damage. See 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (1). Under Diagnostic Code 7802, a maximum 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are superficial (not associated with soft tissue damage) and nonlinear, affecting an area or areas of 144 square inches (929 sq. cm.) or greater. Id. Under Diagnostic Code 7805, any other scars, including linear scars, are to be rated based on any disabling effects and the appropriate diagnostic code for such effects. Diagnostic Code 7805 directs that any disabling effect(s) not considered in Diagnostic Codes 7801 through 7804 should be evaluated under the appropriate diagnostic code. This instruction essentially directs that scars may be rated for the functional impairment caused by the scar. Criteria effective from August 13, 2018 Under Diagnostic Code 7801, a 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear, at least 6 square inches (39 square centimeters). Id. Higher ratings are available for deep and linear scars that affect a larger area, measuring at least 12 square inches. The six zones of the body are defined as each extremity, anterior trunk, and posterior trunk. See 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (1). A separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. See 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (2). Under Diagnostic Code 7802, a maximum 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are superficial (not associated with soft tissue damage), affecting an area or areas of 144 square inches (929 sq. cm.) or greater. Id. Under Diagnostic Code 7805, any other scars, and other effects of scars are to be rated based on any disabling effects not considered under Diagnostic Codes 7801 through 7804. Diagnostic Code 7805 directs that any disabling effect(s) not considered in Diagnostic Codes 7801 through 7804 should be evaluated under the appropriate diagnostic code. This instruction essentially directs that scars may be rated for the functional impairment caused by the scar. In a May 2012 rating decision, the RO granted service connection for residuals of appendectomy, assigning a 10 percent disability rating under Diagnostic Code 7804, with an effective date of November 19, 2010. The Veteran filed a claim for increased disability rating in September 2014. In December 2014 the Veteran was afforded a VA examination. The diagnosis related to his residuals of appendectomy was noted as scar in abdomen with a diagnosis date of 2008. There was one scar noted and it was noted as painful and described as pain on palpation. The scar was not unstable, with frequent loss of covering skin over the scar. The scar was not due to burns. The scar is located in the right lower quadrant of the abdomen and was noted as well healed. It measured 9 centimeters (cm). No superficial non-linear scars or deep non-linear scars were noted. The examiner indicated that the Veteran’s scar impacts his ability to work. Under the remarks section of the report, the examiner noted that the Veteran has a 10 percent disability rating for his scar and that there were no new changes since the last examination in 2012. The record also contains VA treatment records dated until July 2017. These records are consistent with the December 2014 VA report in that none indicates that the abdominal scar tissue at issue here is deep, unstable, or limiting of function in any way. In sum, the evidence indicates that the Veteran’s service-connected scar tissue is superficial and stable, while no evidence indicates that the scar limits the Veteran’s functioning in any way. As such, a rating in excess of 10 percent has been unwarranted here under 38 C.F.R. § 4.118. As stated above, Diagnostic Code 7805 directs that scars may be rated for the functional impairment caused by the scars when the disabling effects of the scars are not contemplated by Diagnostic Codes 7801 through 7804. The Board notes that the only VA examination of record, that falls within appeal period, indicates that the scar causes functional impact. The VA examiner responded in the affirmative to the question as to whether the Veteran’s scar impacts his ability to work. However, reading this in conjunction with the entire report, the Board finds this to be a clerical error. When first noting the Veteran’s name in the report, the first name is listed incorrectly. The Board only concluded that this report refers to the Veteran because he is later identified by his social security number. Also, the examiner did not provide any detail to describe how the abdominal scar impacts the Veteran’s ability work. Lastly, the VA examiner specifically noted that the Veteran has a 10 percent disability rating for his scar and specifically noted that there were “no new changes since last exam in 2012.” Looking at the 2012 VA examination as a point of reference, the VA examiner there responded in the negative to the question as to whether the Veteran’s scar impacts his ability to work. As such, the Board finds that the record indicates that there is no functional impact or impact on the Veteran’s ability to work due to his painful appendectomy scar. The Board appreciates the Veteran’s contentions that his scar is painful and warrants a higher rating. Nevertheless, the 10 percent rating contemplates his painful scar. The medical evidence indicates that the scar is not deep, restrictive or disabling. As such, a rating in excess of 10 percent has not been warranted during the appeal period. As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b). Posttraumatic stress disorder The Veteran contends that his PTSD symptomatology is more severe than contemplated by the disability ratings assigned. In a March 2012 rating decision, the RO granted service connection for PTSD, assigning a 30 percent disability rating with an effective date of November 19, 2010. In a January 2015 rating decision, the RO increased the disability evaluation to 70 percent effective September 30, 2014—the date of the claim. Psychiatric disabilities, such as PTSD, are evaluated under the General Rating Formula for Mental Disorders (pertinent portions listed below). See 38 C.F.R. 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 100 percent disability rating requires 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; or memory loss for names of close relatives, own occupation, or own name. Id. A 70 percent disability rating requires 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); or inability to establish and maintain effective relationships. Id. When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all a veteran’s symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation, but are not meant to be exhaustive. Id. Further, the United States Court of Appeals for the Federal Circuit has acknowledged the “symptom-driven nature” of the General Rating Formula and 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.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. The Veteran filed his claim for an increased disability rating in September 2014. Under the governing law and regulations outlined above, the Board generally reviews the evidence dating back to one year prior to the date of the claim to determine whether, within that one-year period, an increase in a disability was factually ascertainable. See 38 C.F.R. 3.400(o). Therefore, the Board will assess VA medical treatment records dated outside of the appeal period, noting that the records discussed below go back little further than a year. A March 2013 VA mental health note indicates the Veteran’s mood as mildly anxious. He learned a week prior that he would be discharged from the military due to medical problems. He remained with his long-term girlfriend, who had a tumor in her brain. He reported difficulty cohabitating with her, and hoped to separate from her after he lost his job. A June 2013 VA mental health note described his mood as mildly anxious. The Veteran reported that his long-term relationship of 18 years was having serious problems. He stated his intentions of taking a long driving vacation when he stops work and then leaving his girlfriend after that. They share a 15-year-old daughter who lives with them. During the December 2014 VA examination, the examiner concluded that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. The Veteran continued to live with his girlfriend of over 15 years. He described being the primary caretaker for his girlfriend, as she had a brain tumor. He also described taking care of his 15-year-old daughter. The Veteran’s social impairment and occupational impairment was due to: flattened affect; disturbances of motivation and mood; inability establishing and maintaining effective social relationships; chronic sleep impairment; suspiciousness, hypervigilance, and hyperarousal resulting in obsessional rituals focused on “safety and security” of his home and family which can prolong his completion of routine activities. The examiner noted that since the last examination the Veteran was retired from the US Army reserves after 37 years of service. The examiner concluded that this is a significant adjustment and loss of identity, structure, and support which serves to further exacerbate his PTSD symptoms. The Veteran continued to receive mental health treatment at a VA clinic, which consisted of individual psychotherapy for PTSD symptoms. The Veteran reported discontinuing the use of psychotropic medications as it did not result in a positive effect. The symptoms associated with his PTSD included: anxiety, chronic sleep impairment, depressed mood, suspiciousness, flattened affect, disturbance of motivation and mood, inability to establish and maintain effective relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, obsessional rituals which interfere with routine activities, and impaired impulse control, such as unprovoked irritability with periods of violence. Upon examination, the Veteran was casual, cooperative, and maintained fair eye contact. Mild psychomotor slowing as observed by gait and gestures. His affect was constricted, with minimal reactivity. He was alert and oriented in all three spheres, and there was no evidence of tangential thought process, loose associations, or psychotic symptoms including auditory/visual hallucinations, paranoid ideation or ideas of reference. Rhythms and patterns of speech were unremarkable and content of speech was clear, coherent, and goal directed. Insight was fair and judgment was intact. The Veteran described his mood as “I get irritable a lot and sometimes depressed.” He denied suicidal or homicidal ideation, plans, attempts, or intent. Upon review of the evidence, the Board finds that a rating higher than 70 percent for PTSD is not warranted. In reviewing the criteria for a 100 percent disability rating and determining whether an evaluation higher than 70 percent is warranted, the Board finds that the evidence does not establish that during the appeal period, the Veteran’s PTSD manifested in total occupational and social impairment. Regarding these areas, the Board has fully considered the frequency, severity, and duration of all the Veteran’s psychiatric symptoms with respect to their effect on his overall occupational and social functioning. 38 C.F.R. 4.126(a). The Veteran’s PTSD has been uniformly manifested by symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, inability in establishing and maintaining effective relationships, difficulty in adapting to stressful circumstances including work or work like setting, obsessional rituals, impaired impulse control, and unprovoked irritability all resulting in deficiencies in most areas, but less than total social and occupational impairment. The preponderance of the evidence demonstrates that the criteria for a disability rating higher than 70 percent for the Veteran’s PTSD have not been met at any point during the relevant appeal period. Specifically, the Veteran’s PTSD has not been manifested by symptomatology more nearly approximating 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; or memory loss for names of close relatives, own occupation, or own name. As such, the Board finds that a 100 percent disability rating is not warranted at any time during the relevant appeal period. 38 C.F.R. 4.130, Diagnostic Code 9411. The evidence shows that the Veteran’s impairment was significant and impacted his relationships and employment. Throughout the appeal period, the Veteran was with the same partner, but often reported a strained relationship as well as his desire to leave her. He described being discharged from the military due to medical problems. The record shows that the Veteran was cooperative, alert and oriented to person, time, and place. The December 2014 examiner did note that the Veteran’s affect was constricted with minimal reactivity. Therefore, the Board finds that throughout the appeal period there were deficiencies in most areas due to psychiatric symptoms. Despite the reported challenges the Veteran described in his long-term relationship, he could maintain a relationship of over 18 years with the same person and raise their daughter together. He endorsed feelings of obsessional rituals, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or work like setting—symptoms consistent with a 70 percent rating. Also, the record shows that he does not have gross impairment of 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, or disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name—all symptoms consistent with a 100 percent disability rating. None of the VA medical records or the December 2014 VA examination indicate any symptoms consistent with total occupational or social impairment at any time during the appeal period. In arriving at this conclusion, the Board has carefully considered the lay assertions of the Veteran in determining that his PTSD symptoms more nearly approximate those associated with a 70 percent rating for the entire appeal period. The Board finds, however, that the preponderance of the evidence is against the claim for an increased disability rating higher than 70 percent. The benefit of the doubt doctrine is not applicable, therefore. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). To meet the requirement of “one 60 percent disability” or “one 40 percent disability,” the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In the December 2016 Board remand, the Board directed the RO to adjudicate the TDIU claim. The Veteran submitted a waiver of consideration by the RO in September 2016 and in November 2017. A review of the record shows that the RO has not adjudicated the TDIU claim. However, given the favorable outcome, the Board finds this error to be non-prejudicial. The Veteran’s service-connected disabilities include: PTSD rated as 70 percent; obstructive sleep apnea rated at 50 percent; residuals of appendectomy rated at 10 percent; right elbow disability rated at 0 percent; and right big toe traumatic injury rated at 0 percent. His combined rating is 90 percent. Therefore, the schedular threshold requirement for establishing entitlement to TDIU has been met. 38 C.F.R. § 4.16. The question before the Board is whether service-connected disability renders the Veteran unable to secure or follow a substantially gainful occupation. A September 2016 residual functional capacity evaluation indicates that as a result of his PTSD symptoms the Veteran would miss 3 or more days of work per month, would need to leave work early 3 or more days per month, and would be unable to stay focused for at least 7 hours of an 8-hour work day more than 3 days a month. It also noted that when subjected to the normal pressures and constructive criticisms of a job he would respond inappropriately more than once a month as he would respond in an angry manner, but would not actually become violent. There is a 7-page report dated August 2016. Several of these pages are illegible. However, the page where the examiner provides his opinion is legible. The examiner stated that it is his expert opinion that the Veteran continues to have severe symptoms which disable/prevent him from sustaining any form or gainful employment activity uninterrupted to present. This examiner also authored a report dated August 2016. The examiner went through the Veteran’s PTSD symptoms and concluded that the Veteran’s symptoms are severe enough to disable and preclude him from sustaining any substantial, gainful, employment activity from the date of his claim (September 30, 2014) through the present. An August 2016 letter authored by a vocational consultant reflects that the Veteran’s service-connected disabilities preclude him from performing work. This letter shows that the Veteran worked as a mechanical specialist until 2013. It states that he has not worked since 2013, as a result of his physical and emotional impairment. After a review of the file, the vocational specialist concluded that the Veteran is totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service-connected PTSD, OSA, residuals of appendectomy, right elbow disability and right big toe traumatic nail injury. The Veteran has provided competent, credible, and probative evidence to show that his service-connected PTSD impacted his ability to perform his work duties as a full-time mechanic. There are three opinions of record, that all agree the Veteran’s PTSD prevents him from finding employment. The Board finds that the realistic chances of the Veteran obtaining and retaining employment must also be considered in light of his physical and educational capabilities. Although it is conceivable that there may be some occupations that the Veteran could perform, the totality of the evidence supports a finding that his service-connected disabilities render him unable to obtain and maintain substantially gainful employment when his educational and work background are taken into consideration. Thus, the Board will resolve reasonable doubt in the Veteran’s favor and find that he has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. As such, a TDIU is granted. Effective Date The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.400 (b)(2)(i), 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. Under 38 C.F.R. § 3.400 (b)(2)(ii), 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. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claims in this case were filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). A report of VA examination or hospitalization can be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b)(1) (in effect prior to March 24, 2015). The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established, or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital admission. The increased rating claim for PTSD is subject to the more specific criteria under 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400(o)(2). “The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The Court has indicated that it is axiomatic that the fact that must be found, in order for entitlement to an increase in disability compensation to arise, is that the service-connected disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2), which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, “the only cognizable ‘increase’ for this purpose is one to the next disability level” provided by law for the particular disability). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was “ascertainable.” Id. at 521. Obstructive sleep apnea The Veteran is seeking an effective date earlier than March 13, 2013, for the grant of service connection for OSA. The Veteran’s original claim of service connection for OSA was filed in March 2013. The RO granted service connection in a November 2013 rating decision, granting a 50 percent disability rating, with an effective date of March 13, 2013. The Veteran filed a claim for an increased rating for OSA in September 2014. In the December 2016 Board remand, the Board found the September 2014 claim to serve substantively as a timely notice of disagreement to the November 2013 rating decision. Therefore, the November 2013 rating decision is not final. As such, there is no petition to reopen involved in this claim. The original claim is the only claim. As stated above, an informal claim that was submitted prior to March 24, 2015 must be considered when analyzing whether an earlier effective date is warranted. Here, the Veteran’s original claim was filed in March 2013. Upon review of the record, there is nothing to indicate—even considering the Veteran’s lay statements—that an informal claim for OSA was filed prior to March 2013. The Board notes that there is a medical evaluation board proceeding dated March 2013 which indicates onset of OSA in June 2008. This document alone, however, is not enough to be considered an informal claim, as this does not identify the benefit sought or indicate an intent to apply for benefits. The Board acknowledges the Veteran’s belief that an effective date earlier than March 13, 2013, is warranted. However, the evidence of record does not support an effective date earlier than his most recent and only claim that was received in March 2013. The earliest date that the Veteran expressed an intent to file a claim for service connection is March 13, 2013, the presently assigned effective date. Under the controlling law and regulations outlined above, the award of compensation based on an original claim may be no earlier than the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. 3.400(r). Thus, the March 13, 2013 date of claim is the appropriate effective date, because even if the date that the entitlement arose could be found to precede it, the later of the two dates controls. 38 C.F.R. 3.400. Posttraumatic stress disorder The Veteran is seeking an effective date earlier than September 30, 2014, for the grant of a 70 percent rating for PTSD. The Veteran’s original claim for service connection for PTSD was filed in November 2010. Service connection was granted in a March 2012 rating decision, with a 30 percent disability rating assigned, and an effective date of November 19, 2010. In March 2012 the Veteran was provided with a letter that explained to him that he had until March 2013 to file an appeal. Enclosed with this letter was VA Form 4107, “Your Rights to Appeal Our Decision.” The Veteran did not respond with a notice of disagreement or other substantive documentation so the March 2012 rating decision became final. See 38 U.S.C.§ 7105(c). The Veteran filed an increased rating claim in September 2014. In a January 2015 rating decision, the RO increased the disability rating to 70 percent, with an effective date of September 30, 2014—the date of the claim. The Board has considered whether any communication or treatment record dated prior to September 30, 2014, could serve as an informal claim in order to entitle the Veteran to an earlier effective date. However, no document associated with the record from March 2012 to September 30, 2014 indicated an intent to pursue a claim of entitlement to an increased rating for service-connected PTSD. Indeed, neither the Veteran nor his attorney has argued that an informal claim was received prior to September 30, 2014. Accordingly, the date of the Veteran’s increased rating claim is September 30, 2014. The Board has reviewed the evidence of record within the one-year period prior to the receipt of the claim on September 30, 2014, to determine whether it is factually ascertainable that service-connected PTSD increased in severity during that time period to warrant an earlier effective date for the award within that year. The only evidence in the file dated during the one-year period prior to September 30, 2014, is a sleep study and a Sleep Apnea Disability Benefits Questionnaire. These records are pertinent to the Veteran’s OSA claim, but provide no information regarding the severity of PTSD. Therefore, the Board finds that it was not factually ascertainable prior to September 30, 2014 that PTSD more nearly approximated the criteria for a rating in excess of the 30 percent rating assigned during that period. As such, an effective date prior to September 30, 2014 for the increase in rating for PTSD is not warranted. 38 C.F.R. § 3.400(o)(2). REASONS FOR REMAND Additional evidentiary development is necessary into the increased rating claim for right elbow disability. The Veteran was last provided a VA examination in connection with his service-connected right elbow disability in December 2014. After the December 2014 VA examination, the United States Court of Appeals for Veterans’ Claims (Court) issued two decisions that directly impact this claim as it mandates specific requirements in VA examinations. See Correia v. McDonald, 28 Vet. App. 158 (2016). See also Sharp v. Shulkin, 29 Vet. App. 26 (2017). During the December 2014 VA examination, the Veteran did not report flare-ups. However, as this matter is being remanded for a new examination in compliance with Correia, on remand the examiner should inquire about flare-ups consistent with the Sharp case. Accordingly, this matter is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records documenting treatment for right elbow disability. The Veteran should also be afforded the opportunity to identify and/or submit any outstanding private treatment records. 2. Schedule the Veteran for an examination of the current severity of his right elbow disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to right elbow disability alone and discuss the effect of the Veteran’s right elbow disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or whether it is due to the examiner not having the knowledge or training. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel