Citation Nr: 18154080 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-45 780 DATE: November 29, 2018 ORDER New and material evidence not having been received, reopening the claim of entitlement to service connection for bilateral plantar fasciitis is denied. New and material evidence not having been received, reopening the claim of entitlement to service connection for sinusitis is denied. Service connection for rhinitis is denied. Service connection for a left hand condition is denied. Service connection for a right hand condition is denied. A rating in excess of 50 percent for obstructive sleep apnea is denied. A rating in excess of 10 percent for hypertension with hypercholesterolemia is denied. A compensable rating for toenail onychomycosis with history of pseudofolliculitis barbae is denied. A rating in excess of 50 percent for migraine and tension headaches is denied. An initial rating in excess of 30 percent for adjustment disorder with alcohol use disorder in remission is denied. An effective date prior to September 26, 2014, for the award of service connection for adjustment disorder is denied. REMANDED Whether a rating in excess of 10 percent is warranted for limitation of flexion, left knee, is remanded Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. An August 2005 rating decision denied service connection for both bilateral plantar fasciitis and sinusitis on the basis that there was no evidence of an in service incurrence of either disability. 2. The Veteran did not file a notice of disagreement or any new evidence related to plantar fasciitis or sinusitis within one year of the August 2005 decision. 3. The evidence added to the record subsequent to the August 2005 rating decision is cumulative of the evidence previously of record related to the plantar fasciitis and sinusitis; does not relate to an unestablished fact necessary to substantiate either claim; and does not raise a reasonable possibility of substantiating either claim. 4. The evidence of record does not include a diagnosis of rhinitis or treatment for symptoms of rhinitis during the pendency of this claim. 5. The evidence of record does not include a diagnosis or treatment of a left hand condition during the pendency of this claim. 6. The evidence of record does not include a diagnosis or treatment of a right hand condition during the pendency of this claim. 7. The Veteran’s obstructive sleep apnea is not manifested by chronic respiratory failure with carbon dioxide retention or cor pulmonale, and has not required a tracheostomy. 8. At no time during the pendency of this claim has the Veteran’s diastolic blood pressure reached 110 or more, and at no time has his systolic pressure reached 200 or more. 9. The Veteran’s toenail onychomycosis with history of pseudofolliculitis barbae is manifested by asymptomatic pseudofolliculitis barbae, and symptomatic toenail onychomycosis that covers less than 5 percent of the entire body and no exposed areas, is treated with topical therapy as needed, and has never included systemic symptoms requiring any systemic therapy. 10. The Veteran is currently receiving a 50 percent rating for his service-connected migraine and tension headaches, the maximum schedular rating allowed under the applicable VA rating criteria. 11. For the entire appeal period, the Veteran’s adjustment disorder with alcohol use disorder in remission results in no occupational but some social impairment, although generally functioning satisfactory, with routine behavior, self-care, and conversation normal, without more severe manifestations that more nearly approximate occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. 12. On September 26, 2014, more than one year following his discharge from service, the Veteran filed his original claim seeking service connection for depression, which was later recharacterized as adjustment disorder. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral plantar fasciitis. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for sinusitis. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for rhinitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 4. The criteria for service connection for a left hand condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 5. The criteria for service connection for a right hand condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 6. The criteria for a rating in excess of 50 percent for obstructive sleep apnea have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.97, Diagnostic Code (DC) 6847 (2017). 7. The criteria for a rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.104, DC 7101 (2017). 8. The criteria for a compensable rating for toenail onychomycosis with history of pseudofolliculitis barbae have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, DC 7813 (2017). 9. The criteria for a rating in excess of 50 percent for migraine and tension headaches have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, DC 8100 (2017). 10. The criteria for an initial rating in excess of 30 percent for adjustment disorder with alcohol use disorder in remission have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9440 (2017). 11. The criteria for an effective date prior to September 26, 2014, for the award of service connection for adjustment disorder have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran’s claims come before the Board on appeal from a June 2015 rating decision. The July 2015 Notice of Disagreement submitted by his representative in part noted disagreement with the effective dates assigned for the left knee, obstructive sleep apnea, headaches, hypertension and toenail onychomycosis. These claims were increased rating claims that were denied in the rating decision; thus, the only effective date potentially at issue is the effective date assigned for the award of service connection for these disabilities which was assigned in prior rating decisions. No statement of the case was issued in relation to the representative’s challenge to these effective dates. However, the Board finds a remand is not needed for this purpose, because appellants are prohibited from collaterally attacking a prior final decision by filing a freestanding earlier effective date claim. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Thus, the matters considered at this time are limited to the issues discussed, below. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). In this case, the Veteran is seeking to reopen the claims for service connection for plantar fasciitis and sinusitis. The Veteran was first denied service connection for these disabilities in August 2005. The RO explained that there was no indication of either plantar fasciitis, or sinusitis during the Veteran’s active service. The RO, in fact, noted that the Veteran had not filed a claim for either disability, but had reported both at the time of the VA examination, so the RO adjudicated the claims. Because there was no evidence that plantar fasciitis or sinusitis occurred in or was caused by the Veteran’s active service, the RO denied both claims. The Veteran did not file a notice of disagreement at any time with regard to either claim. The evidence of record at the time of the August 2005 decision included the Veteran’s service treatment records and a December 2004 VA examination report. The service treatment records include a notation of pes planus at entrance into service, but no foot trouble or indication of plantar fasciitis at any time, and no indication of treatment of symptoms of sinusitis or any diagnosis of sinusitis. The first indication of plantar fasciitis and sinusitis was noted in the December 2004 VA examination report. The evidence received since August 2005 includes the Veteran’s September 2014 claim, which simply lists sinusitis and bilateral feet as claims, with no explanation of the basis for the claims. VA outpatient treatment records have also been added to the record, none of which show any indication that plantar fasciitis or sinusitis manifested during or as a result of the Veteran’s active service. The RO afforded the Veteran a VA examination related to his feet and the March 2015 examiner noted, based upon the Veteran’s reported history, that the plantar fasciitis was diagnosed in 2012. This examiner, however, found no evidence of currently existing plantar fasciitis and suggested the previous condition had resolved. Because the military records did not show any indication of plantar fasciitis and the current examination found no evidence of plantar fasciitis, the examiner found the claimed condition to be less likely than not incurred in or caused by the Veteran’s active service. As for sinusitis, there is no additional evidence and the Veteran was not afforded an examination. The Board does not find remand for examination warranted, because VA’s duty to assist by providing medical examinations or obtaining medical opinions only applies to a claim such as this if new and material evidence is presented or secured. 38 C.F.R. § 3.159(c)(4)(C)(iii) (2017). In sum, the evidence added to the claims file since the August 2005 denial includes both medical records, including a bilateral foot VA examination, and the Veteran’s claim, none of which include any basis for finding plantar fasciitis or sinusitis having manifested during or as a result of the Veteran’s active service. The evidence, while new, is not material because its factual showing is duplicative of the facts present at the time of the prior denials. The evidence is cumulative of the evidence previously of record, does not relate to unestablished facts necessary to substantiate the claims, and does not raise a reasonable possibility of substantiating either claim. Accordingly, reopening of these claims is not in order. Service Connection The Veteran has claimed service connection for rhinitis and for right and left hand conditions. Initially, the Board notes that the September 2014 claim form, the July 2015 notice of disagreement, and the September 2016 substantive appeal all include these issues, but provide no explanation as to why the Veteran feels service connection is warranted for these disabilities. He has also provided no narrative statements related to the claims to suggest why he believes service connection is warranted. The question for the Board is whether the Veteran has chronic rhinitis or a left or right hand disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Based upon the Board’s review of the Veteran’s entire claims file, the Board concludes that the Veteran does not have a current diagnosis of chronic rhinitis or a left or right hand disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board has searched the Veteran’s VA outpatient records since, and shortly before, his September 2014 claim. He has not been treated for rhinitis or any symptoms of rhinitis during the pendency of this claim. There is also no evidence of treatment for either hand. Again, neither the Veteran, nor his representative have made any narrative statements or pointed to any relevant evidence related to these claims. The Board has also reviewed the Veteran’s Social Security Administration records for evidence of rhinitis or hand disabilities. There is no indication of rhinitis or related disorders and the only mention of the hands is in a discussion of hand function associated with carpal tunnel syndrome, which is not claimed or on appeal. The February 2015 VA examiner evaluated the Veteran and noted his report of tingling and numbness and his treatment with a wrist brace, which is presumably associated with the carpal tunnel syndrome and symptoms noted in the Social Security Administration records. The VA examiner confirmed that there is no diagnosis of any condition of the hands. The Board has considered whether a VA examination is required with regard to the rhinitis claim on appeal under VA’s duty-to-assist provisions. 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The evidence of record is such that the duty to obtain a medical examination is not triggered with regard to this claim. There is no conflicting evidence in the file. In other words, the file does not contain evidence, either within the outpatient clinical records, within the Social Security Administration records, or within any lay statements, to establish the presence of either rhinitis or a right or left hand disability. To the extent the Veteran believes he has a current diagnosis of rhinitis or a right or left hand disability, he is not competent to provide a diagnosis in this case. The issues are medically complex, as they require specialized medical education and knowledge in order to provide diagnoses. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. “Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability... in the absence of a proof of present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary’s adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). There is no evidence of rhinitis or a right or left hand disability of record in this case. Accordingly, these claims must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s rhinitis and left and right hand claims, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2017). 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Obstructive Sleep Apnea The Veteran was awarded service connection for obstructive sleep apnea by way of an April 2005 rating decision and a 50 percent rating was assigned. He filed this claim for increase in September 2014 and the 50 percent rating was continued by way of the June 2015 rating decision on appeal. Diagnostic Code 6847 provides the rating criteria for sleep apnea. A 50 percent rating is assigned where there is required use of breathing assistance device such as continuous airway pressure (CPAP) machine. The next available rating is a 100 percent rating and this is assigned with evidence of chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; where tracheostomy is required. 38 C.F.R. § 4.97, DC 6847. The Board has reviewed the Veteran’s outpatient records during the pendency of this claim and there is no indication at any time of treatment for symptoms of or a diagnosis of respiratory failure with carbon dioxide retention or cor pulmonale and the Veteran has not undergone tracheostomy. The Veteran underwent VA examination in February 2015. The examiner confirmed the diagnosis of obstructive sleep apnea and noted the Veteran’s ongoing use of a CPAP machine since 1999 with continued symptoms, including persistent daytime hypersomnolence. The Veteran confirmed that he does not take medication for this condition. Consistent with the clinical records, there is no indication of respiratory failure with carbon dioxide retention, cor pulmonale, or tracheostomy. The examiner also noted there were no other pertinent physical findings and no impact on the Veteran’s ability to work. The Board has reviewed the Veteran’s claim, notice of disagreement and substantive appeal and also reviewed the claims file for any lay statements suggesting the presence of symptoms not shown in the clinical records or VA examination report, however, no such records or lay statements exist. Neither the Veteran, nor his representative, have suggested any basis for their claim that a rating in excess of 50 percent is warranted. The Board finds that the record does not show the Veteran’s sleep apnea was manifested by chronic respiratory failure with carbon dioxide retention or cor pulmonale, or required a tracheostomy that would merit an increased rating throughout the period on appeal. As such, a disability rating in excess of 50 percent is not warranted. 38 C.F.R. § 4.97, DC 6847. Hypertension Service connection for hypertension was awarded by way of an April 2005 rating decision, and a 20 percent rating was assigned. Later, following a VA examination, the rating was reduced to 10 percent disabling by way of a November 2007 rating decision. This decision was not appealed. Following the Veteran’s September 2014 claim for increase, the 10 percent rating was continued by way of the June 2015 rating decision on appeal. The Veteran’s service-connected hypertension is rated as 10 percent disabling under 38 C.F.R. § 4.104, DC 7101, which pertains to hypertensive vascular disease (hypertension and isolated systolic hypertension). Under that diagnostic code, a 10 percent rating is assigned for diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or where an individual with a history of diastolic pressure predominantly 100 or more requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is assigned for diastolic pressure predominantly 120 or more. The highest rating, 60 percent, is assigned for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, DC 7101. The Veteran’s VA clinical records show his ongoing prescription of medication for hypertension. VA primary care notes show both measurements of blood pressure and the Veteran’s reports related to the pattern he observes while measuring blood pressure at home. In May 2014, his blood pressure was 132/89 and he reported home tests running in the 120s/70s. August 2014 records show 148/90. In October 2014, the Veteran reported home tests running in the 180s/80s when he is stressed and 130s/70s when more relaxed. In December 2014, his blood pressure was 151/90 and he reported that home tests ran in the 140s/70s. The Veteran was afforded a VA examination in February 2015. He confirmed that he continued to take diltiazem and hydrochlorothiazide for his hypertension. On the date of the examination, his blood pressure was 153/97, 146/95 and 134/88. The examiner noted there were no other physical findings related to the Veteran’s hypertension and the hypertension does not impact his ability to work. April 2015 VA clinical notes show blood pressure of 118/76. At the time of a May 2015 VA examination for his headaches, the Veteran’s blood pressure was measured as 146/96. These records are essentially consistent in the measurement of the range of the Veteran’s hypertension readings. The Veteran has not reported any worsening of the condition since. Because of the consistency shown and the lack of report of worsening, the Board finds remand for additional development of the record unnecessary. Again, for the next higher rating for hypertension, the evidence must show diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. In this case, the readings in the clinical records and the VA examination reports do not show the Veteran’s diastolic pressure ever at 110 or more and the Veteran’s reports of his home readings also do not reach that level. Similarly, the highest systolic pressure has never been at 200 in either clinical showings, or the Veteran’s home reports. Again, he does not suggest that his hypertension has worsened in recent years, thus, there is no reason to delay adjudication of this claim in order to further develop the record. The criteria are simply not met for a rating in excess of 10 percent for the Veteran’s hypertension. Toenail Onychomycosis The Veteran was awarded service connection for toenail onychomycosis by way of an April 2005 rating decision and a noncompensable rating was assigned. He filed a claim in September 2014 listing “bilateral feet,” which the RO construed as a claim for an increased rating for toenail onychomycosis. This appeal stems from the June 2015 continuance of the noncompensable rating. The noncompensable rating for the Veteran’s toenail onychomycosis with history of pseudofolliculitis barbae is assigned under Diagnostic Codes 7813. This skin disorder is rated by analogy as dermatophytosis, and under Diagnostic Code 7813 (dermatophytosis) is to be rated as disfigurement of the head, face, or neck (DC 7800), scars (DC 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. 38 C.F.R. § 4.118. Although all available diagnostic codes have been considered, Diagnostic Codes 7800-7805 do not apply in this case, because the disorder does not pertain to the head, face or neck (other than the past history of pseudofolliculitis barbae, which is not noted in clinical records and not found to be symptomatic in the VA examination report), and because the evidence does not show that the Veteran has scars related to his toenail onychomycosis with history of pseudofolliculitis barbae. This claim is, therefore, analyzed as analogous to dermatitis. Under DC 7806 (dermatitis or eczema), a 0 percent (noncompensable) rating is warranted when less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and no more than topical therapy was required during the past 12-month period. A 10 percent rating is warranted for involvement of at least 5 percent, but less than 20 percent, of the entire body or at least 5 percent, but less than 20 percent, of exposed areas are affected; or with the need for intermittent systemic therapy such as with corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted where the area of involvement is 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas; or with a need for systemic therapy such as with corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. The highest (60 percent) rating requires involvement of more than 40 percent of the entire body or more than 40 percent of exposed areas, or with the need for constant or near-constant systemic therapy such as with corticosteroids or other immunosuppressive drugs in the past 12-month period. 38 C.F.R. § 4.118, DC 7806. The Board has reviewed the Veteran’s entire claims file to include VA treatment records, Social Security Administration records, and the February 2015 VA examination report. Neither the Veteran, nor his representative have submitted additional lay statements to suggest the presence of symptoms not shown in the medical evidence or to suggest the basis for the claim that a compensable rating is warranted. Thus, this analysis is based upon the facts found in the medical records and VA examination report. The Veteran’s VA clinical records show treatment in December 2014 for a toenail fungus with an ongoing prescription of Nystatin ointment. At the time of the February 2015 VA examination, the Veteran reported his initial diagnosis having been in 2000 and using an ointment at that time, but that he has not used any such ointment within the prior year. The Veteran confirmed that there were no systemic manifestations of the skin disorder, such as fever, weight loss or hypoproteinemia, and he confirmed that he had not been treated with any oral or topical medications for any skin condition, and, in fact, had not had any treatment within the prior year. The examiner also noted the history of pseudofolliculitis barbae, which is noted in the Veteran’s history within the characterization of the service connected disability; but, the examiner found no lesions on the face and any pseudofolliculitis was well controlled. The examiner noted, with regard to the Veteran’s feet, that he had thickened and white color on his right toenail. The examiner noted that there are no other physical findings related to either the toenail onychomycosis, or the historically noted pseudofolliculitis barbae. The Veteran’s records from the Social Security Administration do not include any reference to a skin disorder. Further, the remaining VA clinical records do not show treatment of the skin. Again, the Veteran has not made any statements suggesting the presence of symptoms or treatment other than what is shown in the record. In sum, the record indicates no treatment or presence of symptoms of the historically noted pseudofolliculitis barbae during the pendency of this claim. Further, any foot skin condition has only been treated with topical therapy, and with less than 5 percent of his entire body affected by any skin condition, and less than 5 percent of exposed area affected. Accordingly, a noncompensable evaluation under DC 7806 is merited. There is simply no basis in the record for the award of a compensable rating. Headaches The Veteran’s migraine and tension headaches were originally awarded service connection in April 2005 and assigned a noncompensable rating. In August 2011, the RO issued a rating decision awarding a 50 percent rating for the Veteran’s headaches. He filed this claim for increase in September 2014. The Veteran’s headaches are rated as 50 percent disabling under Diagnostic Code 8100 throughout the period of this appeal. Under Diagnostic Code 8100, 50 percent is the highest available rating for migraine headaches and it is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. In light of the above, as the highest rating has been awarded, the Board concludes that the Veteran is not entitled to a higher schedular rating. There are no other diagnostic codes that are applicable for rating the Veteran’s migraine headaches. Therefore, a schedular rating in excess of 50 percent for migraine headaches is not warranted. Moreover, the records do not show and the Veteran has not alleged that his headaches warrant extraschedular consideration. To the extent that he alleges the headaches prevent him from obtaining and maintaining substantially gainful employment, this is discussed separately within the discussion of entitlement to a TDIU. Adjustment Disorder with Alcohol Use Disorder in Remission The Veteran filed a claim for service connection for depression in September 2014. The June 2015 rating decision on appeal awarded service connection for adjustment disorder with alcohol use disorder in remission, claimed as depression, and assigned a 30 percent disability rating. The Veteran appealed the initial rating assigned. The Veteran’s adjustment disorder is evaluated under 38 C.F.R. § 4.130, DC 9440. Under the General Rating Formula For Mental Disorders, to include adjustment disorder, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, 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; or mild memory loss (such as forgetting names, directions, recent events). 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where there is 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; intermittently illogical, obscure, or irrelevant speech; 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); and inability to establish and maintain effective relationships. A 100 percent evaluation is assignable where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. As the United States Court of Appeals for the Federal Circuit has held, evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9440. Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). In evaluating the level of disability, it is also necessary to evaluate such from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Several months prior to filing his claim, the Veteran’s May 2014 VA clinical records show he was reporting doing well without antidepressant medication and also reporting that his depression had improved after stopping alcohol. The Veteran was afforded a VA mental disorders examination in February 2015. The examiner noted the Veteran’s alcohol use as in remission and found the current diagnosis to be adjustment disorder based on his reactions, which presented as transient mood issues. Because he did not report or present with a depressed mood, the diagnosis of depression was not the assessment of this examiner. The examiner noted the Veteran’s symptoms as including chronic sleep impairment, but indicated this was most likely related to his sleep apnea. The other symptoms included disturbances of motivation and mood, as well as transient suicidal ideation. The Veteran reported having transient thoughts of crashing his car at times while driving, but denied a desire to act on this. He did not indicate when he had this suicidal ideation, although the Board observes that the Veteran’s report of depression was in the past, rather than on the day of the examination; thus, the Veteran presumably was reporting on past ideas of crashing his car. On the day of the examination, the examiner noted the Veteran’s affect as euthymic with good range, with no evidence of psychotic thinking, and intact judgment, thought content, insight and thought processing. The examiner specifically noted there was no indication of suicidal ideation or need for treatment on the day of the examination. In subsequent records, including in April 2015, the Veteran’s VA clinical records show a problem list including “Major depression, single episode, in complete remission.” The Veteran’s Social Security Administration records include a November 2015 decision also indicating the Veteran as having depression in remission. The Social Security records include reference to and copies of the VA clinical records already mentioned in this analysis. The Veteran’s remaining clinical records do not suggest the Veteran had any additional treatment or need for medication or reports of symptoms of depression. The Veteran has not filed any statements to suggest any symptoms having arisen to suggest a worsening since the February 2015 VA examination. Based upon the evidence of record, the Board finds a rating in excess of 30 percent is not warranted for the Veteran’s adjustment disorder. He had an episode of depression prior to this claim with a notation in May 2014 that he no longer needed anti-depression medication and that his condition had improved after he stopped drinking alcohol. The VA examiner recognized his adjustment disorder and noted the Veteran’s report of a history including wanting to crash his car, but no intent to do so. There are also no such symptoms noted in the clinical records. 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The Veteran’s records include no such report of symptoms. The Board further finds that the Veteran’s symptoms are not of the type and severity contemplated by the 70 percent disability rating. While the Board notes that the Veteran had what was noted as transient suicidal ideation with no intent, his symptoms have not been shown to be manifested by obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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; or an inability to establish and maintain effective relationships. The only symptoms described by the Veteran and noted by the VA examiner are disturbances in mood and motivation, which led to the adjustment disorder diagnosis, and sleep disturbance, which was deemed part of his separately service connected sleep apnea. The Board finds the single report of prior transient thoughts of crashing his car do not raise his overall impairment level to that contemplated by the criteria for a 70 percent rating. The Board also finds that the Veteran’s disability picture does not show symptoms 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 (including maintenance of minimal personal hygiene); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Board finds that the Veteran’s adjustment disorder symptomatology does not result in total occupational and social impairment and, therefore, a 100 percent rating is also not warranted. The Veteran’s adjustment disorder is manifested by some social impairment (although generally functioning satisfactory, with routine behavior, self-care, and conversation normal) due to his adjustment disorder and its effect on his mood and motivation, but without more severe manifestations that more nearly approximate occupational and social impairment with reduced reliability and productivity, or deficiencies in most areas, or total occupational and social impairment. Consequently, a rating in excess of 30 percent for adjustment disorder is not warranted. Earlier Effective Date In general, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). Effective March 24, 2015, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C. § 5101(a) (2012); 38 C.F.R. § 3.151(a) (2017). The Veteran is seeking an effective date prior to September 26, 2014, for the award of service connection for adjustment disorder with alcohol use disorder in remission. The Board reviewed the July 2015 Notice of Disagreement with the effective date assigned, as well as the other evidence of record, and there is no indication by the Veteran or his representative as to why they contend an earlier effective date is warranted. Following its review of the record, the Board finds that September 26, 2014 is the correct effective date for the award of service connection for the Veteran’s adjustment disorder, because that is the date of receipt of his claim. The Veteran separated from active service in October 2004. The Veteran filed his original claim for service connection for depression in September 2014, which was later granted and recharacterized as an adjustment disorder. There is no indication of a claim for service connection for depression, adjustment disorder, or any other psychiatric disorder prior to September 2014, including within one year of the Veteran’s October 2004 separation from active duty. The Board recognizes that the law requiring a form prescribed by VA became effective March 24, 2015. The Board, therefore, reviewed the Veteran’s file to determine if any formal or informal claim was received in the ten years between the Veteran’s October 2004 separation from service and September 26, 2014. No such claim was made. Even if medical evidence had shown the existence of a psychiatric disorder prior to September 26, 2014, there is no evidence that the Veteran intended to file the claim prior to this date. See Ellington v. Nicholson, 22 Vet. App. 141 (2007) (finding that in the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, a document providing medical information in and of itself is not an informal claim for VA benefits); Brannon v. West, 12 Vet. App. 32 (1998) (noting that the mere presence of medical evidence does not establish an intent to seek service connection for a psychiatric disorder). Thus, the appropriate date for the establishment of service connection based upon the original claim for service connection is the date of receipt of the claim, September 26, 2014. In reaching this decision, the Board has considered the Veteran’s and his representative’s various written statements. Again, they made no specific contentions as to why earlier effective dates should be awarded. The Board has also considered the doctrine of reasonable doubt, but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. REASONS FOR REMAND Left Knee While the record contains a March 2015 VA examination regarding the Veteran’s service-connected left knee disability, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examination report specifically notes pain on movement in the area describing functional loss, but the examination did not include any joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and with range of motion measurements of the opposite undamaged joints, all of which is required by 38 C.F.R. § 4.59 and Correia. This matter must be remanded for a new VA examination to assess the current severity of the left knee disaiblity and to include testing in compliance with 38 C.F.R. § 4.59 and Correia. TDIU In February 2017, the Veteran’s representative raised the claim for a TDIU due to the service-connected headaches and sleep apnea, the ratings for which are on appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part of a rating issue when unemployability is expressly raised by a veteran or reasonably raised by the record. In this case, the Veteran meets the minimum disability rating percentage threshold for consideration of schedular TDIU and the question is whether the facts demonstrate that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from service-connected disabilities. 38 C.F.R. §4.16(a). The record shows the Veteran stopped work in 2011, prior to the increased rating claims on appeal, and he has not worked during the pendency of this claim. In January 2017, the Veteran’s former employer submitted a statement in support of this claim. The former employer described the Veteran has having headaches that would become so debilitating that he was unable to perform his job, such that he became a liability and a risk to himself and others. The former employer indicated that the Veteran was unable to maintain employment because of his headaches. Thus, the evidence establishes that the Veteran indeed stopped working in 2011 related to his headaches and has not worked since. However, these claims were filed in September 2014; thus, the question is whether the Veteran has been unable to return to work and secure or follow a substantially gainful occupation due solely to impairment resulting from the service-connected headaches and sleep apnea during the pendency of these claims. In February 2017, a medical doctor submitted a statement in support of this claim. The physician noted review of the Veteran’s complete claims file, as well as a personal interview with the Veteran in February 2017. The physician indeed suggested the Veteran is unemployable due to his service connected headaches and sleep apnea. However, the physician only refers to evidence prior to the period on appeal and does not reference evidence showing an improvement in his headaches since 2014. The physician noted the Veteran’s inability to keep his job in 2011 due to his headaches, and also mentions the daytime fatigue and sleepiness caused by the Veteran’s sleep apnea, which was based upon a 2011 VA sleep apnea examination. Turning to the evidence of record since the filing of the September 2014 increased rating claims, there is no suggestion that the Veteran has returned to work. However, the question is not whether the Veteran is working, but whether he is capable of securing and following a substantially gainful occupation. VA clinical records several months prior to his claim show that in May 2014 he reported his migraine headaches occurring every one to two weeks. In August 2014, he sought care in the emergency room due to his migraines and he filed the increased rating claim the next month. In October 2014, he reported a worsening of his headaches during the prior three months, with them occurring four times per week and lasting two hours if he treats them early, but all day if he waits too long. In December 2014, however, he reported an improvement in migraines since October and he reported to his physician that he has not needed his migraine medication at all. In November 2015, the Social Security Administration indeed noted the Veteran’s migraine headaches as a severe impairment, and noted that he could not return to the type of work he was doing, but found him capable of adjustment to other work. The Veteran’s May 2015 VA headache examination report shows his report of prostrating headaches more than once per month, but there was no mention of them being several times per week or daily, as previously reported. The examiner found the Veteran misses classes due to his headaches and, “were he working, [he] would miss work because of headaches.” The examiner, however, did not indicate whether or not he would be able to secure or maintain substantially gainful work even if missing work at times due to his headaches. A February 2015 sleep apnea examination report shows ongoing daytime hypersomnolence due to the sleep apnea, although the examiner opined that this would not impact the Veteran’s ability to work. Thus, there is a claim that the Veteran’s service connected headaches and sleep apnea cause him to be unemployable, and there is indeed a showing that during the pendency of these increased rating claims, the disabilities may have an impact on the Veteran’s employment, but the Board finds an opinion is needed to assess the Veteran’s ability to function in an occupational environment considering the service connected headaches and sleep apnea so the Board can make a determination as to whether these disabilities have caused him to be unemployable at any time during the pendency of these increased rating claims. For this reason, a remand is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of his service-connected left knee 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 the left knee disability and discuss the effect of the 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 the examiner (does not have the knowledge or training). 2. Obtain an opinion, based upon a review of the evidence during the pendency of the Veteran’s increased rating claims, which were filed in September 2014, from an appropriate clinician. The clinician should discuss the Veteran’s complete educational, vocational, and employment history and should note his complaints and symptoms regarding the impact of his migraine headaches and sleep apnea on employment during the pendency of these increased rating claims. The clinician should identify all limitations or functional impairment caused solely by migraine headaches and sleep apnea, to include a discussion of the Veteran’s ability to function in an occupational environment with these disabilities. If it is not possible to provide an opinion regarding symptoms, the occupational limitations and 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 the examiner (does not have the knowledge or training). The determination as to whether a new examination of the Veteran is needed is left to the clinician writing this opinion. Should such an examination be necessary, the RO should take action to schedule such an examination. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Adamson, Counsel