Citation Nr: 18152816 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-48 254 DATE: November 27, 2018 ORDER An increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. A rating of 40 percent for traumatic brain injury (TBI) with cognitive disorder from November 29, 2012 is granted. An effective date earlier than April 17, 2007 for the award of a 30 percent rating for service-connected dermographism (previously rated as tinea versicolor and eczema) is denied. An effective date earlier than November 29, 2012 for the award of a 70 percent rating for service-connected PTSD is denied. REMAND The issue of increased rating in excess of 30 percent for dermographism (previously rated as tinea versicolor and eczema) is remanded. FINDINGS OF FACT 1. From November 29, 2012, total occupational and social impairment due to PTSD is not demonstrated. 2. Throughout the period on appeal, the probative medical evidence indicates the Veteran’s evaluations of residuals of TBI revealed that the highest level of severity for cognitive impairment and subjective symptoms was level 2 for objective evidence of mild impairment of memory, attention, concentration or executive functions and moderately impaired judgment. 3. The earliest date the Veteran is entitled to disability benefits is the day following the date of separation from service, which is April 17, 2007. 4. The Veteran’s claim for entitlement to an increased rating in excess of 70 percent for PTSD was received on November 29, 2012. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating in excess of 70 percent, since November 29, 2012, for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.125, 4.126(a), 4.130, DC 9411. 2. The criteria for entitlement to a 40 percent rating from November 29, 2012 for traumatic brain injury (TBI) with cognitive disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.124(a), DC 8045. 3. The criteria for entitlement to an effective date earlier than April 17, 2007 for the award of a 30 percent rating for service-connected dermographism (previously rated as tinea versicolor and eczema) have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 4. The criteria for entitlement to an effective date earlier than November 29, 2012 for the award of a 70 percent rating for service-connected PTSD have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from August 1999 through August 2003 and from July 2006 through April 2007. Effective September 2016, the Veteran is in receipt of a 100 percent combined schedular evaluation of service-connected disabilities. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the January 2014 rating decision, the evaluation of eczema (previously rated as tinea versicolor), which was rated at 30 percent disabling was continued. In the Veteran’s February 2014 notice of disagreement (NOD), the Veteran only disagreed with the evaluation of his service-connected eczema. The August 2016 statement of the case (SOC) included the issue of an earlier effective date for dermographism, which was rated at 30 percent disabling. The Veteran submitted a substantive appeal (VA Form 9) to appeal all the issues on the SOC in September 2016. To the extent that the appeal for entitlement to an earlier effective date for dermographism was not timely filed, by treating a claim as if it is part of a timely filed substantive appeal, VA effectively waives all objections to the procedural adequacy of the appeal with respect to that issue. Percy v. Shinseki, 23 Vet. App. 37 (2009). Therefore, this claim is currently before the Board on appeal. Increased Rating Disability ratings are determined by applying criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should 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. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). Additionally, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an increased rating in excess of 70 percent for PTSD. The Veteran’s PTSD has been evaluated as 30 percent disabling from June 14, 2010 through November 28, 2012 and 70 percent disabling since November 29, 2012, under the General Rating Formula for Mental Disorders, which assigns ratings based on particular symptoms and the resulting functional impairments. See 38 C.F.R. § 4.130; DC 9411. The General Rating Formula for Mental Disorders is as follows: A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 30 percent evaluation is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. The symptoms associated with each rating in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list; rather, they serve as examples of the type and degree of the symptoms, or their effects, that would justify a rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the DCs. See Id. VA must consider all symptoms of a claimant’s disorder that affect his or her occupational and social impairment. See Id. at 443. If the evidence demonstrates that a claimant has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate, equivalent rating will be assigned. Id. In this regard, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. Although VA considers the level of social impairment, it does not assign an evaluation based solely on social impairment. Id. VA must consider all the claimant’s symptoms and resulting functional impairment as shown by the evidence in assigning the appropriate rating, and will not rely solely on the examiner’s assessment of the level of disability at the moment of examination. See Id. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) is for application as this appeal was pending before the AOJ on August 4, 2014. 38 C.F.R. §§ 4.125, 4.130; 79 Fed. Reg. 45093, 45099 (effective date provisions); 80 Fed. Reg. 53, 14308 (March 19, 2015) (adopting the final rule recognizing that the DSM-IV was rendered obsolete by the publication of the DSM-5 in May 2013). “Given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Court holds that the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies... [t]he Board should not use such evidence at all when assigning a psychiatric rating in cases where the DSM-5 applies.” Golden v. Shulkin, 29 Vet. App. 221, 225 (2018). During the period on appeal the Veteran has asserted that his PTSD results in familial, social, work, and mood impairment. With respect to specific symptomatology, the Veteran has reported violent behavior, various altercations with friends, family, and co-workers, impulsivity, isolationist behavior, and suffering familial relationships, all of which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A November 2013 VA examiner noted a diagnosis of PTSD. The Veteran noted symptoms of recurrent and distressing recollections of the event; recurrent distressing dreams; acting or feeling as if the traumatic event were recurring; intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; efforts to avoid thoughts, feelings or conversations associated with the trauma; efforts to avoid activities, places or people that arouse recollections of the trauma; markedly diminished interest or participation in significant activities; feeling of detachment or estrangement from others; restricted range of affect; sense of a foreshortened future; difficulty falling or staying asleep; irritability or outburst of anger; difficulty concentrating; hypervigilance; exaggerated startle response; symptoms lasting longer than one month; and the symptoms causing significant distress or impairment in social occupational, or other important areas of functioning. The examiner noted symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-life setting; and inability to establish and maintain effective relationships. An October 2014 private examiner noted a diagnosis of PTSD. The Veteran noted symptoms of recurrent, involuntary, and intrusive distressing memories of the traumatic event(s); recurrent distressing dreams in which the content and/or effect of the dream are related to the traumatic event(s); intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s); marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s); avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s); avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s); persistent negative emotional state; markedly diminished interest or participation in significant activities; feeling of detachment or estrangement from others; persistent inability to experience positive emotions; irritable behavior and anger outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects; reckless or self-destructive behavior; hypervigilance; exaggerated startled response; problems with concentration; sleep disturbance; symptoms lasting longer than one month; and the symptoms causing clinically significant distress or impairment in social, occupational, or other important areas of functioning. The psychologist noted symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur less than weekly; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and inability to establish and maintain effective relationships. The psychologist noted that the Veteran is currently employed. There is no evidence that neither the VA examiner nor the private psychiatrist were not competent and credible. As both reports noted the Veteran’s subjective reports of his symptoms and their effect on his social and occupational functioning and were based on objective psychiatric evaluations, the Board finds that each is entitled to significant probative weight concerning the type and severity of the veteran’s symptoms, as well as his overall level of social and occupational impairment, at the time they were conducted. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). VA treatment records indicate the Veteran reported reexperiencing hyperarousal, avoidance, anger, problems sleeping, nightmares, stress, depression, mood swings, impulsivity, anxiety, irritability, being easily startled, headaches, feeling numb and detached from family, dislike of crowds, and isolationist behavior. Given these facts, the Board finds that the preponderance of the evidence is against the claim for a rating of 70 percent during the relevant period. An increased rating more than 70 percent is not warranted under DC 9411 for PTSD. The claim is denied. A higher rating is not warranted because the Veteran does not demonstrate signs and symptoms of total occupational impairment or total social impairment such 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; or disorientation to time or place, or severe memory loss. The Veteran has remained employed throughout the period on appeal. See e.g., April 2016 Dermatology Outpatient Note. He reported periodic passive thoughts of suicide, however, he denied current suicidal/homicidal ideations, a history of suicide attempts, and inpatient psychiatric hospitalizations since the last examination. See October 2014 Review PTSD (revised) Disability Benefits Questionnaire. Although the Veteran has separated from his wife, they continue to attend counseling sessions together, he has established relationships with his children from the marriage, and he has resided with his mother, who has stated that the Veteran is really doing very well. See e.g., January 2015 TBI/Polytrauma Rehabilitation/Reintegration Plan of Care; January 2016 Caregiver Certificate. Additionally, staged ratings are not warranted, as the Veteran has had a relatively stable level of symptomatology throughout the appeal. Any other increases in severity were not sufficient for a higher rating. See Fenderson, 12 Vet. App. at 126–27. 2. Entitlement to a compensable rating from November 29, 2012 for traumatic brain injury (TBI) with cognitive disorder. DC 8045 provides for the evaluation of TBI. 38 C.F.R. § 4.124(a); DC 8045. Under DC 8045, there are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In each individual, symptoms may fluctuate in severity from day to day. Adjudicators are to evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Adjudicators are to evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” However, they are to separately evaluate any residual with a distinct diagnosis that may be evaluated under another DC, such as migraine headache or Meniere’s disease, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table. Adjudicators are to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings—mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, they are to evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Adjudicators are to evaluate physical (including neurological) dysfunction based on the following list, under an appropriate DC: motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, adjudicators are to evaluate under the most appropriate DC. Adjudicators are to evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. The table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled “total.” However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than total, because any level of impaired consciousness would be totally disabling. Adjudicators are to assign a 100 percent evaluation if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” adjudicators are to assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. 38 C.F.R. § 4.124(a); DC 8045. There are 4 relevant notes to DC 8045: Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another DC. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a evaluation. Note (3): “Instrumental activities of daily living” refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one’s own medications, and using a telephone. These activities are distinguished from “Activities of daily living,” which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms “mild,” “moderate,” and “severe” TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under DC 8045. 38 C.F.R. § 4.124(a); DC 8045. VA treatment records, during the period on appeal, indicate that the Veteran had symptoms of poor concentration, inability to pay attention, being easily distracted, forgetfulness, and memory loss. On November 4, 2013, the Veteran was afforded a VA TBI residuals examination. He reported constant headaches, impairments in memory/recall, focus/ concentration issues, mood swings, anger issues, frustration and irritability, hypersensitivity to lights and sounds, tinnitus, and in executive functions in daily activities at home or in work situations. On examination, he had objective evidence of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; mildly impaired judgment; frequently inappropriate social interactions; always oriented to person, time, place, and situation; normal motor activity; mildly impaired visual spatial orientation; subjective symptoms of intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light; one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them; being able to communicate by spoken and written language and to comprehend spoken and written language; and normal consciousness. He had subjective symptoms of skin disorders and headaches, including migraine headaches, that were residuals of his TBI. The examiner noted that the Veteran’s symptoms impacted his ability to work because the Veteran would experience mild to moderate difficulty in competitive work settings due to his impaired focus/concentration, impaired memory/recall, chronic mood swings, irritability, and anger issues. On November 12, 2013, the Veteran was afforded another VA TBI residuals examination. He reported forgetfulness, left-sided migraine, depression, anxiety, concentration issues, irritability, anger, distress, and poor sleep. On examination, he had objective evidence of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; normal judgment; occasionally inappropriate social interactions; always oriented to person, time, place, and situation; normal motor activity; normal visual spatial orientation; subjective symptoms of intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light; one or more neurobehavioral effects that did not interfere with workplace or social interaction; being able to communicate by spoken and written language and to comprehend spoken and written language; and normal consciousness. He had a subjective symptom of headaches, including migraine headaches, that was a residual of his TBI. The examiner noted that the Veteran’s symptoms did not impact his ability to work. In July 2014, the Veteran was afforded another VA TBI residuals examination. He reported headaches and behavioral changes. On examination, he had a complaint of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing; moderately impaired judgment; occasionally inappropriate social interactions; always oriented to person, time, place, and situation; normal motor activity; normal visual spatial orientation; subjective symptoms of intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light; one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them, including irritability, verbal aggression, and physical aggression; being able to communicate by spoken and written language and to comprehend spoken and written language; and normal consciousness. He had a subjective symptom of headaches, including migraine headaches, that was a residual of his TBI. The examiner noted that the Veteran’s symptoms impacted his ability to work because his functional activities are limited by headaches, and memory and concentration impairment. They decrease his ability to function at a higher level of efficiency which frustrates the Veteran. In his February 2014 NOD, the Veteran reported severe memory loss, which is hard for him to pass his classes and advance at work. The Veteran’s PTSD and migraine headaches are both service connected as residuals to his TBI. However, the symptoms do not overlap with TBI residuals. Although, the November 2013 PTSD VA examiner indicated that it is not possible to differentiate what portion of each symptom is attributable to the TBI and mental diagnosis stating the symptoms overlap, the October 2014 PTSD private examiner indicated with specificity what symptoms are attributable to each diagnosis. The October 2014 examiner further stated that hypervigilance, exaggerated startled response, nightmares, and recurring thoughts/memories of traumatic events are related to the Veteran’s PTSD diagnosis, while migraines, dizziness, misplacing items, memory, and attention problems are related to the Veteran’s TBI diagnosis. Giving the Veteran the benefit-of-doubt, the issue is in equipoise regarding whether the TBI and PTSD symptoms overlap. Therefore, the Veteran’s TBI and PTSD symptoms will remain analyzed under separate DCs. Given these facts, the Board finds that a 40 percent rating since November 29, 2012 is appropriately assigned for the residuals of a TBI during the relevant period. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). He did not have a 3 in any of the 10 facets, and the preponderance of the evidence is against a grant of 70 percent rating. Additionally, staged ratings are not warranted, as the Veteran has had a relatively stable level of symptomatology throughout the appeal. Any other increases in severity were not sufficient for a higher rating. See Fenderson, 12 Vet. App. at 126–27. Effective Date Unless otherwise specified, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is to be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400. The effective date is the date of receipt of claim or the date entitlement arose, whichever is later. However, if the claim is received within one year of separation from service, the effective date will be the day following the date of separation from service. 38 C.F.R. § 3.400(b)(2). During the pendency of the appeal the definition of what constitutes a valid claim has changed. Effective March 24, 2015, VA amended its regulations to require that to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57,660 (Sept. 25, 2014) (eff. Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015. Id. at 57,686. Claims or appeals pending before VA on that date are to be decided based on the regulations as they existed prior to the amendment. Id. As the Veteran’s claim for an earlier effective date was pending on March 24, 2015, the Board will apply the laws and regulations as they existed prior to the amendment in determining whether a submission constituted a claim for benefits. Id. Under the law prior to the amendment, a claim was defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2011) (amended 2015). An informal claim was any communication or action indicating an intent to apply for one or more benefits that identifies the benefit sought. 38 C.F.R. § 3.155(a) (2011) (repealed 2015). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims—formal and informal—for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Upon receipt of an informal claim for benefits, if a formal claim for benefits had not been filed, VA was required to provide the Veteran with a formal claim form for the Veteran to complete and return. 38 C.F.R. § 3.155(a) (2011). If a formal claim for benefits was then filed within one year of the date the formal claim form was sent to the Veteran, the formal claim was considered to have been filed as of the date of receipt of the informal claim. Id. 3. Entitlement to an effective date earlier than April 17, 2007 for the award of a 30 percent rating for service-connected dermographism (previously rated as tinea versicolor and eczema). The Veteran submitted a claim for service connection for skin spotting in May 2007. In a November 2007 rating decision, the RO assigned a 30 percent rating for tinea versicolor effective April 17, 2007, the date following the Veteran’s separation from active service. The Veteran filed a claim for an increased rating of his service-connected tinea versicolor (claimed as skin spotting) in June 2010. In a December 2010 rating decision, the RO continued the 30 percent rating for tinea versicolor. The Veteran filed a claim for an increased rating of his service-connected tinea versicolor in February 2012 and filed a claim for an increased rating of eczema in November 2012. In a January 2014 rating decision, the RO continued the 30 percent rating for eczema (previously rated as tinea versicolor). The issue is whether the Veteran is entitled to an effective date earlier than April 17, 2007, the date following the Veteran’s separation from active service. The appeal lacks legal merit. The Board is constrained by the law and regulations governing the establishment of effective dates for the award of compensation. Effective dates are generally determined by the date of receipt of a claim or date entitlement arose, whichever is later and here. There is an exception for claims that are filed within one year from the date of separation, however, there is no entitlement to an effective date earlier than the date of separation. The Court has held that in a case where the law, as opposed to the facts, is dispositive of the claim, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law). Therefore, the claim is denied. 4. Entitlement to an effective date earlier than November 29, 2012 for the award of a 70 percent rating for service-connected PTSD. The Veteran submitted a claim for service connection for PTSD in June 2010. In a December 2010 rating decision, the RO assigned a 30 percent rating for PTSD effective June 14, 2010, the date the RO received the Veteran’s claim. The Veteran did not appeal this decision and it became final. The Veteran filed a claim for an increased rating of his service-connected PTSD in November 2012. In a January 2014 rating decision, the RO assigned a 70 percent rating for PTSD effective November 29, 2012, the date the RO received the Veteran’s claim. The Veteran filed an NOD in February 2014 requesting an increased rating an earlier effective date of February 13, 2012. The Veteran states the effective date of November 29, 2012 does not reflect the date the claim was filed. He states he filed his claim on February 13, 2012 and that his effective date should reflect that date. However, the Board is constrained by the law and regulations governing the establishment of effective dates for the award of compensation. Effective dates are generally determined by the date of receipt of a claim or date entitlement arose, whichever is later and here, no exceptions to the general rule are applicable. The Veteran’s February 2012 claim only references increased rating claims for tinea versicolor and tinnitus. Instead, the Veteran’s November 2012 claim includes the increased rating claim for PTSD. An effective date prior to November 29, 2012, for the award of a 70 percent rating for service-connected PTSD is not warranted. The preponderance of the evidence is against the claim; there is no doubt to be resolved. The appeal is denied. REMAND 5. The issue of an increased rating more than 30 percent for dermographism is remanded for further development. 1. Reasons for Remand: In Burton v. Wilkie, No. 16-2037 (CAVC September 28, 2018), the Court of Appeals held in part that in the adjudication of rating claims under Diagnostic Code 7806, VA must consider if a topically-applied corticosteroid may be considered a “systemic therapy” under 38 C.F.R. § 4.118. see Johnson v. Shulkin, No. 2016-2144, 2017 U.S. App. LEXIS 12601, at *11 (Fed. Cir. July 14, 2017). Medical opinion is necessary to make this determination. 2. The RO will provide access of the Veteran’s file to an appropriately-qualified physician who will review all medical evidence, IN PARTICULAR THE VETERAN’S PRESCRIBED MEDICATIONS FOR HIS SKIN DISORDER, and express an opinion as to whether the use of any corticosteroid, including that topically applied may be considered a “systemic therapy” through the method by which the therapy on the entire body (if any) AND whether the use of such therapy may produce side effects and if so, to identify such effects. 3. Any further medical examinations may be conducted. The medical reviewer’s attention is called to the following: In November 2013, the Veteran was afforded a VA examination. The Veteran indicated that the symptoms began in 2002 as a light color rash over his arm and spread over his arms, trunk, and lower extremities. He indicated that the rash comes and goes. The clinician noted eczema covering approximately 20 percent to 40 percent of the total body area and 5 percent to 20 percent of the exposed area. The clinician reported no scarring or disfigurement of the head, face or neck, no systemic manifestations due to any skin disease, no treatment with oral or topical medications, no treatments or procedures other than systemic or topical medications, no debilitating or non-debilitating episodes, or no benign or malignant neoplasm or metastasis. In July 2014, the Veteran was afforded another VA examination. The clinician noted dermographism covering approximately 20 percent to 40 percent of the total body area and the exposed area. The clinician reported no scarring or disfigurement of the head, face or neck, no systemic manifestations due to any skin disease, no treatment with oral or topical medications, no treatments or procedures other than systemic or topical medications, no debilitating or non-debilitating episodes, or no benign or malignant neoplasm or metastasis. In October 2016, the Veteran was afforded another VA examination. The Veteran indicated that his dermographism began affecting his arms in 2003, but now it is all over his body and has resulted in the constant use of a topical antihistamine. Upon examination, the clinician noted dermatitis covering approximately 20 percent to 40 percent of the total body area and 5 percent to 20 percent of the exposed area. The clinician reported no scarring or disfigurement of the head, face or neck, no systemic manifestations due to any skin disease, no treatments or procedures other than systemic or topical medications in the past 12 months for exfoliative dermatitis or papulosquamous disorders, no debilitating or non-debilitating episodes, or no benign or malignant neoplasm or metastasis. 4. THE VETERAN IS ADVISED that he may submit any further medical or non-medical evidence or further argument to the RO. (Continued on the next page)   5. After completion of the above directives, readjudicate the claim and follow all appropriate appellate procedures. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. McLendon, Associate Counsel