Citation Nr: 18154740 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-06 919 DATE: November 30, 2018 ORDER Entitlement to an effective date prior to August 1, 2007, for the award of service connection for residuals of a right foot bunionectomy is denied. Entitlement to an effective date prior to August 1, 2007 for the award of service connection for residuals of a left foot bunionectomy is denied. An effective date of April 1, 2011, but no earlier, for the award of a 70 percent evaluation for posttraumatic stress disorder with a depressive disorder is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to an effective date prior to December 15, 2011 for the award of service connection for left ankle osteoarthritis is denied. Entitlement to an initial rating of 20 percent, but no higher, for left ankle osteoarthritis is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities from October 21, 2011 to November 2, 2016 is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to a temporary total evaluation due to hospitalization in September 2013 is denied. REMANDED Entitlement to an initial rating higher than 70 percent for posttraumatic stress disorder with depressive disorder is remanded. Entitlement to an initial compensable rating for residuals of a right foot bunionectomy is remanded. Entitlement to an initial compensable rating for residuals of a left foot bunionectomy is remanded. FINDINGS OF FACT 1. The Veteran’s last day of active service was July 31, 2007. 2. The Veteran was assigned an effective date for the award of service connection for residuals of right and left foot bunionectomies of August 1, 2007. 3. From April 1, 2011 to September 24, 2012, the Veteran’s symptoms due to posttraumatic stress disorder with depressive disorder were manifested by occupational and social impairment with deficiencies in most areas. 4. The Veteran did not submit any correspondence prior to April 1, 2011 indicating an intent to claim entitlement to service connection for a psychiatric disorder. 5. The Veteran did not submit any correspondence prior to December 15, 2011 indicating an intent to claim entitlement to service connection for a left ankle disability. 6. Resolving reasonable doubt in the Veteran’s favor, he has had a marked limitation of left ankle motion throughout the entire period on appeal; at no time has he had ankylosis of the left ankle. 7. Resolving reasonable doubt in the Veteran’s favor, the evidence is at least in equipoise that from October 21, 2011 to November 2, 2016, the combined impact of his service-connected disabilities prevented him from obtaining and retaining substantially gainful employment consistent with his educational background and work experience. 8. The Veteran was hospitalized for treatment of posttraumatic stress disorder and depressive disorder from September 4, 2013 to September 9, 2013; he was not hospitalized for a period of over 21 days. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date for the award of service connection for residuals of a right foot bunionectomy prior to August 1, 2007 have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for entitlement to an effective date for the award of service connection for residuals of a left foot bunionectomy prior to August 1, 2007 have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. From April 1, 2011 to September 24, 2012, the criteria for an initial 70 percent rating for posttraumatic stress disorder with depressive disorder were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 4. The criteria for entitlement to an effective date for an award of service connection for posttraumatic stress disorder with depressive disorder prior to April 1, 2011 have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.158, 3.400. 5. The criteria for entitlement to an effective date for the award of service connection for left ankle osteoarthritis prior to December 15, 2011 have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.158, 3.400. 6. The criteria for an initial 20 percent rating, but no higher, for left ankle osteoarthritis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5270, 5271. 7. From October 21, 2011 to November 2, 2016, the criteria for the award of a total disability evaluation based on individual unemployability due to service connected disorders have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 8. The criteria for a temporary total evaluation due to hospitalization for a service-connected disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.157, 4.29. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1986 to July 2007. Earlier Effective Date Residuals of right and left foot bunionectomies The Veteran has requested an earlier effective date for the grant of service connection for residuals of right and left foot bunionectomies. The effective date for direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of claim, or date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(b)(2)(i). The Veteran has been assigned an effective date of August 1, 2007 for the award of service connection for residuals of right and left foot bunionectomies. His DD Form 214 shows that his last day of active service was July 31, 2007, and thus he has already been assigned an effective date which is the day following separation from service. No earlier effective date is legally possible. Id. The Veteran has not presented any argument regarding why he believes an earlier effective date is warranted or indicated that his DD Form 2014 separation date is incorrect. Indeed, the wrote on his February 2007 initial claim that the day he left service was July 31, 2007. As there is no legal basis to allow for an earlier effective date for the award of service connection for residuals of right and left foot bunionectomies, entitlement to an effective date earlier than August 1, 2007 must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). A 70 percent rating for posttraumatic stress disorder The Veteran first submitted a claim of entitlement to service connection for posttraumatic stress disorder in April 2011. In a June 2012 rating decision, he was assigned an evaluation of 30 percent, effective April 1, 2011. In March 2013, the Veteran submitted a letter from nurse practitioner T.R. which stated that his posttraumatic stress disorder caused the appellant difficulties with getting along with others due to anger issues, anxiety, and hyperarousal, and that together with his physical disabilities, he was unable to work. In an August 2013 rating decision, the Veteran’s evaluation for posttraumatic stress disorder with depressive disorder was increased to 70 percent, effective September 25, 2012. This effective date was assigned because it was the date that the Veteran submitted a claim for a total disability rating based on individual unemployability, which was accepted as an increased rating claim. The March 2013 letter from T.R. was submitted within one year of the June 2012 rating decision. As such it constitutes new and material evidence that was relevant to the original claim. Hence, the June 2012 rating decision has remained pending and is not final. 38 C.F.R. § 3.156(b). Because the claim has remained pending, the Board is able to consider the period from April 1, 2011 to September 24, 2012 as, essentially, an increased rating claim. The Board has reviewed all of the evidence and after resolving reasonable doubt in the Veteran’s favor finds that a 70 percent rating can be assigned from April 1, 2011. Disability evaluations are governed by VA’s Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R., Part 4. The percentage ratings in the Rating Schedule represent the “average impairment in earning capacity” resulting from service-connected disabilities, and residuals thereof, in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran’s posttraumatic stress disorder with depressive disorder is evaluated under the General Rating Formula for Mental Illnesses. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating applies if the veteran has 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 worklike setting); inability to establish and maintain effective relationships. Id. The Veteran’s evaluation for posttraumatic stress disorder with depressive disorder was increased to 70 percent in the August 2013 rating decision largely on the basis that the appellant’s symptoms were severely interfering with his ability to work. The Board finds that these symptoms began to manifest prior to September 25, 2012, and as likely as not were of a comparable severity since he submitted his initial claim on April 1, 2011. The Veteran’s VA treatment records show that since April 2011, the Veteran has had significant insomnia, irritability, and anger management problems. At a psychiatric evaluation, he was anxious and irritable, but judgment and insight was intact. He spoke normally and denied suicidal or homicidal thoughts. He was diagnosed with anxiety disorder, rule out posttraumatic stress disorder. At a June 2012 VA examination, the Veteran reported that he quickly became angry and sometimes “snapped.” He reported working in supply at Fort Riley until October 21, 2011, when he was laid off, but even when he was working, he frequently forgot things, which negatively impacted his work performance and contributed to losing his job. The examiner found that the Veteran had symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances. At a May 2013 VA examination, the Veteran was found to be even more isolated and angry since he was laid off from work, and his posttraumatic stress disorder symptoms had increased. He had nightmares and paranoid behavior, and was highly suspicious of everyone around him. In addition to the symptoms found at the 2012 VA examination, he was found to have impaired impulse control, impaired judgment, and inability to establish and maintain effective relationships. Based on review of all the evidence above, and affording the Veteran the benefit of the doubt, the Board finds that an initial evaluation of 70 percent from April 1, 2011 to September 24, 2012 is warranted. The Veteran has had symptoms of depression, anxiety, paranoia, insomnia, nightmares, hypervigilance, impaired impulse control, anger outbursts, and flattened affect. In assigning this rating, the Board finds that while many, though not all, of the rating criteria for 70 percent are satisfied, an increased rating for a psychiatric disorder does not require that all deficiencies listed in the rating criteria are met. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). The Board will resolve reasonable doubt in favor of the Veteran in the interest of stability in rating as per 38 C.F.R. § 3.344(a), and finds that the assignment of the more favorable 70 percent evaluation should be assigned throughout the entire appeal period. While the Veteran appears to only be requesting that the 70 percent rating be assigned an effective date back to the date of his original claim, the Board has also considered whether an effective date prior to April 1, 2011 can be assigned. There is, however, no basis to grant an effective date any earlier than April 1, 2011. On April 1, 2011, the representative submitted correspondence stating that the Veteran was seeking entitlement to service connection for insomnia. June 2011 correspondence also stated that the Veteran was seeking service connection for posttraumatic stress disorder. The Veteran’s VA treatment records show that while he reported problems sleeping in 2010, the Veteran first contacted his VA clinic about stress-related insomnia on April 7, 2011. The effective date for direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of claim, or date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(b)(2)(i). The earliest correspondence from the Veteran or his representative indicating an intent to file a claim was received on April 1, 2011. The Veteran has not asserted that he submitted any other documents which were intended to constitute a formal or informal claim for benefits for any psychiatric disorder. In the absence of any earlier communication from the Veteran indicating a desire to file a claim for a psychiatric disorder, the Board finds that an effective date prior to April 1, 2011 for the award of service connection for posttraumatic stress disorder with depressive disorder is not warranted. Based on the foregoing, the Board finds that the evidence is at least in equipoise as to the whether the Veteran’s posttraumatic stress disorder with depressive disorder, from April 1, 2011 to September 24, 2012, was productive of occupational and social impairment with deficiencies in most areas, and entitlement to a 70 percent rating for this period, but no earlier, is warranted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’ the Nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”). The issue of whether a rating higher than 70 percent is warranted for the Veteran’s posttraumatic stress disorder with depressive disorder at any time during the period on appeal is addressed in the remand below. Left Ankle Osteoarthritis The Veteran has also requested an effective date earlier than December 15, 2011 for left ankle osteoarthritis. The Veteran’s claim of entitlement to service connection for left ankle osteoarthritis was received on December 15, 2011. As was discussed above, the effective date for direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of claim, or date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(b)(2)(i). The statutory and regulatory provisions in effect at the time that the Veteran submitted his 2011 claim required that VA look to all communications from the appellant, which may be interpreted as applications or claims—formal and informal—for benefits. In particular, VA was required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a) (2011); see Servello v. Derwinski, 3 Vet. App. 196 (1992). There is no evidence indicating that the Veteran submitted a claim of entitlement to service connection for a left ankle disability within one year of his separation from service, or that he submitted any correspondence expressing an intent to file a claim of entitlement to a left ankle disability prior to December 15, 2011. The Veteran has not provided any argument explaining why he believes that an effective date earlier than December 15, 2011 is warranted. He has not asserted that he actually submitted a claim prior to that date or that any left ankle claim had been pending. The Board acknowledges that VA must liberally construe all documents filed by a claimant. See EF v. Derwinski, 1 Vet. App. 324, 326 (1991). In this case, however, there are no documents submitted by the Veteran which could constitute a claim of entitlement to service connection for a left ankle disability, and the Veteran has not identified any correspondence which he believes constitutes an earlier claim. The Board acknowledges that the Veteran was treated for left ankle pain prior to December 2011. While VA medical records may be construed to be an informal claim in certain situation, this provision does not apply to issues where no claim has yet been filed for that disability. See 38 C.F.R. § 3.157 (2011); see also MacPhee v. Nicholson, 459 F.3d 1323, 1327 (2006) (“a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability.”). The mere existence of VA treatment records for left ankle pain does not constitute an expression of intent to apply for service connection for a left ankle disability. See, e.g., KL v. Brown, 5 Vet. App., 205, 208 (1993). Furthermore, VA is not required to “conjure up issues that were not raised by the appellant;” claims must be expressed by the appellant either expressly or impliedly. See Brannon v. West, 12 Vet. App. 32, 35. The Board is bound by applicable regulations regarding when an effective date may be assigned. In the absence of any claim, either formal or informal, of entitlement to service connection for a left ankle disability prior to December 15, 2011, there is no basis under law to assign an earlier effective date, and the claim must be denied. Increased Rating Left Ankle Osteoarthritis The Veteran requests an increased initial rating for left ankle osteoarthritis. The Veteran’s left ankle disability has been assigned an initial 10 percent rating under Diagnostic Codes 5271 and 5003, which evaluate degenerative arthritis and limited motion in the ankle. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5271. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. Limited motion of the ankle is assigned a 10 percent rating when the limitation is moderate and a 20 percent rating when it is marked. Ankle ankylosis in plantar flexion of less than 30 degrees is assigned a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Ratings of 30 and 40 percent are available when there is ankylosis of the ankle in plantar flexion greater than 30 degrees, in dorsiflexion between 0 and 10 degrees, or with abduction, adduction, inversion, or eversion deformity. Id. Separate rating criteria are available for astragalectomy, os calcis, malunion or the astragalus, and ankylosis of the subastragalar or tarsal joint, but as the Veteran has not at any time been shown to have these disorders, these rating criteria will not be considered at this time. 38 C.F.R. § 4.71a, Diagnostic Codes 5272-5274. Words such as “moderate” and “marked” as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The Veteran’s VA treatment records show frequent complaints and treatment for left ankle pain and difficulties with ambulation. At a January 2013 physical therapy consultation, the Veteran reported having a lot of pain in his left ankle. He was given a new ankle brace. In September 2013 he was noted to have weakness in his ankles and used a cane at home. At a November 2015 physical therapy consultation, the Veteran’s ankle active range of motion was within normal limits. At a June 2016 physical therapy evaluation, the Veteran reported needing ankle braces to stand without pain. He had decreased ankle range of motion and decreased strength. His ankle was tender to palpation. In July 2016, he was evaluated for ankle pain, and it was recommended that he begin physical therapy. The Veteran reported aching pain which was exacerbated with movement, standing, walking, and weight-bearing. In October 2016, he reported ankle pain and was found to have decreased range of motion. At a May 2012 VA examination, the Veteran reported that his left ankle was sore all of the time and that he needed to wear ankle braces. The Veteran reported having flare ups which manifested by increased pain in the morning resulting in limping and the need to use a cane. He also stated that the pain was worse when it was damp and cloudy, and that he treated the pain with pain medication which helped. Range of motion testing found left ankle plantar flexion to 35 degrees, with painful motion beginning at 20 degrees, and dorsiflexion to 20 degrees, with painful motion beginning at 10 degrees. The Veteran was able to perform repetitive motions with no loss of motion. The Veteran had normal muscle strength and no laxity or ankylosis. The examiner found that the ankle condition did not impact the Veteran’s ability to work. At a May 2013 VA examination, the Veteran reported having throbbing pain in his ankles. He did not report any flare ups. Range of motion testing revealed normal left ankle motion with no evidence of painful motion. There was no loss of range of motion after repetitive use, and no ankylosis. The condition made standing at work due to the ankles being very painful. The Veteran also attended a VA examination in September 2015. He reported having ankle pain that increased when he walked on it. The Veteran did not report flare ups. His range of motion was tested and found to be normal, with dorsiflexion to 20 degrees and plantar flexion to 45 degrees. There was no pain noted on examination, or pain with weight bearing or palpation. The Veteran was able to perform three repetitions with no loss of motion, and the examiner found that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over a period of time. Ankle strength was normal and there was no ankylosis. The examiner noted that the Veteran’s ankle disorders would limit standing and walking, but would not interfere with seated occupations. The Veteran most recently attended a VA ankle examination in December 2016. The Veteran reported needing a cane to walk some of the time. The Veteran described his flare ups as being increased pain in both ankles when the weather changes that somedays made it hard to walk. Range of motion testing found left ankle dorsiflexion to 20 degrees and plantar flexion to 30 degrees. The examiner noted that degenerative anatomic changes and pain were the causes of the decreased range of motion. There was no pain with weight bearing or on palpation, but there was pain with dorsiflexion, with active and passive motion. There was no additional loss of function with repetitive use, and the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare ups. The examiner was not able to say without speculation whether pain, weakness, fatigability, or incoordination would limit functional ability with repetitive use over time or flare ups, and provided an adequate explanation for this finding, which appropriately evaluated all procurable and assembled information in making this finding. The examiner explained that the Veteran demonstrated optimum effort during examination, and there was no decreased effort as a result of pain or fear of injury, and therefore the examiner felt he was unable to predict additional limitation of function that would be further caused by repetitive use over time or during flare ups. The examiner found that the Veteran’s ankle disabilities would impact employment, as the Veteran could not safely lift and carry more than 30 pounds or safely climb stairs while carrying objects. After reviewing all of the evidence of record, the Board affords the Veteran the benefit of the doubt and finds that a 20 percent rating can be assigned for his left ankle osteoarthritis for the entire period on appeal. While the Veteran’s range of motion testing has been highly variable throughout the appeal period, he has at times been found to have very significantly limited range of motion, such as at the May 2012 VA examination, where range of motion testing found painful motion at plantar flexion of 20 degrees and dorsiflexion of 10 degrees. Throughout the period on appeal, the Veteran has reported having very frequent morning flare ups which caused severe pain and difficulty with ambulation. He walks with an altered gait and has credibly described how his extreme ankle pain has caused him great difficulty in performing all physical activities. VA treatment records show that he has frequently sought out treatment for his left ankle, including physical therapy and left ankle braces. The Board therefore accepts that for the entire period on appeal, his ankle disability has been “marked,” and a 20 percent rating can be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The Board does not find that a rating higher than 20 percent can be assigned. While the Veteran has a limitation of left ankle motion, as well as symptoms such as pain and weakness, 20 percent is the highest rating that can be assigned under Diagnostic Code 5271. Id. No higher rating can be assigned unless the Veteran’s left ankle demonstrates ankylosis. The preponderance of the evidence shows that he has not had, at any time during the period on appeal, ankylosis of the left ankle. Generally, ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, surgical procedure.” Lewis v. Derwinski, 3 Vet. App. 259 (1992). None of the VA examiners have ever found the Veteran to have ankylosis, and all of the remaining medical evidence indicates that while he has at times had a severe limitation of motion in his left ankle, he nonetheless has always had at least some range of motion in his ankle. The preponderance of the evidence shows he has a marked limitation of motion, but in the absence of evidence of ankylosis, no higher rating can be assigned. The Board has also considered 38 C.F.R. § 4.59 regarding the Veteran’s painful motion. Under 38 C.F.R. § 4.59, with any form of arthritis, actually painful joints are entitled to at least the minimum compensable rating. In this case, however, the Veteran has been assigned the maximum rating for the left ankle based on limitation of motion, and pain alone does not allow for a higher rating. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Board considered the Veteran’s lay statements regarding the functional impact of his service-connected left ankle disability. He is competent to report his own observations with regard to the severity of his disability, including reports of pain and decreased mobility. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has stated that he has trouble walking, standing, using stairs, and performing any kind of physical activity because of ankle pain. These statements are credible and consistent with the rating assigned. The occurrence of pain and weakness while performing such activities is not an additional symptom, but rather the practical effect of the symptoms of pain and limited range of motion which have been clinically observed and measured in the Veteran’s medical records. To the extent that the Veteran argues his symptomatology is more severe than shown on evaluation, his statements must be weighed against the other evidence of record. Here, the specific examination findings of trained health care professionals are of greater probative weight than the Veteran’s more general lay assertions. The Board therefore finds that a 20 percent initial rating, but no higher, can be assigned for the Veteran’s left ankle osteoarthritis. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine, but finds that the preponderance of the evidence is against assignment of a rating higher rating than 20 percent. See 38 U.S.C. § 5107(b). Lastly, the question of entitlement to referral for consideration of an extraschedular rating is neither an issue argued by the claimant nor reasonably raised by the record through evidence of the collective impact of the claimant’s service-connected disabilities. Yancy v. McDonald, 27 Vet. App. 484, 494. Total Disability Rating Based on Individual Unemployability In September 2012, the Veteran submitted a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. He wrote that he had last worked in supplies and stopped working on October 21, 2011. He wrote that he was prevented from working due to his posttraumatic stress disorder, diabetes, ankle disabilities, and left knee disability. The Board notes that effective November 3, 2016, the Veteran has been assigned a total disability rating of 100 percent, and this issue is moot from that date. The Board acknowledges that the United States Court of Appeals for Veteran’s Claims held in Bradley v. Peake, 22 Vet. App. 280 that there could be a situation where a veteran has a schedular total rating for a service-connected disability, and could establish a total disability rating based on individual unemployability for another service-connected disability in order to qualify for special monthly compensation under 38 U.S.C. § 1114(s) by having an “additional” disability of 60 percent or more. Thus, Bradley made it such that even with the assignment of a total schedular rating, the issue of entitlement to a total disability rating based on individual unemployability was potentially not moot. The Board concludes that the holding in Bradley does not apply to the current case for the period after November 3, 2016, as the Veteran and the supporting medical evidence indicates that it is the combination of his service-connected disabilities which have resulted in his inability to maintain gainful employment, and there is no medical evidence indicating that the Veteran would meet the criteria for a total disability rating based on individual unemployability based on two separate disabilities or groups of disabilities which each, on their own, would prevent the Veteran from being able to work. For the period prior to November 3, 2016, the Board will resolve reasonable doubt in the Veteran’s favor and assign entitlement to a total disability rating based on individual unemployability from October 21, 2011. VA will grant a total disability evaluation based on individual unemployability due to service connected disorders when the evidence shows that a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. For the entire period from October 21, 2011 to November 2, 2016, the Veteran has been assigned a combined disability rating of 90 percent, including a 70 percent rating for posttraumatic stress disorder with depressive disorder; he therefore did meet the criteria to be eligible for a schedular total disability evaluation based on individual unemployability due to service-connected disorders under 38 C.F.R. § 4.16(a). In March 2013, the Veteran’s nurse practitioner T.R. wrote that the Veteran had multiple disabilities, including diabetes, tendonitis, asthma, hypertension, ankle pain, foot pain, sleep apnea, and posttraumatic stress disorder, and that the combination of his medical issues dramatically limited what he could do physically. T.R. also noted that posttraumatic stress disorder caused difficulties getting along with others due to anger issues and anxiety. He wrote that the Veteran’s usual occupation involved physical work which he was not able to perform anymore, and that because he had difficulty being around people, it was his opinion that the appellant’s medical and psychiatric problems prevented him from being able to obtain gainful employment. Vocational rehabilitation counselor S.B. wrote a letter in March 2015 which discussed the Veteran’s service-connected disabilities and employment history, and noted that the appellant had not worked since 2011. She stated that examinations from November 2012 and May 2013 showed that the Veteran’s posttraumatic stress disorder symptoms caused memory loss, impaired judgment, disturbances in motivation and mood, and impaired his ability to maintain concentration and attention, to work in coordination of others, to interact appropriately with the general public, to appropriately respond to criticisms, and to get along with coworkers. She also discussed how the Veteran’s medical records showed significant physical impairments, such as the May 2013 VA examination which found that the Veteran’s ankle disabilities prevented him from being able to stand at work. She wrote that the Veteran’s overall symptoms would likely cause him to miss more work days than would be acceptable from most employers and that his physical and emotional symptoms would impact his concentration and persistence at any work task. She summarized her findings by stating that the combination of the Veteran’s physical and emotional conditions would severely limit his ability to sustain work and would preclude him from performing work at a gainful level. While VA examiners have come to different conclusion regarding whether the Veteran was capable of maintaining sedentary employment, the Board finds that the medical opinions provided by the nurse practitioner in March 2013 and the vocational rehabilitation counselor in March 2015 provide competent and credible medical evidence indicating that the Veteran was unable to maintain gainful employment well before 2016. The March 2015 examiner reviewed medical evidence dating back to at least 2012 and found that the Veteran had been unable to work since 2011. These examiners discussed how the combination of the Veteran’s physical limitations and his psychiatric symptoms together would prevent him from being able to work in even a sedentary capability due to his inability to get along with people and his problems with concentration and anxiety. The Board therefore finds that adequate medical evidence indicating that the Veteran’s service-connected disabilities, including his multiple joint disorders, diabetes, and posttraumatic stress disorder with depression, prevented him from being able to maintain any gainful employment from October 21, 2011 to November 2, 2016. Hence, entitlement to a total disability evaluation based on individual unemployability due to service-connected disorders is granted from October 21, 2011. See Wise, 26 Vet. App. at 531. Temporary Total Evaluation Due to Hospitalization The Veteran also contends that a temporary total evaluation should be assigned for his period of hospitalization from September 4, 2013 to September 9, 2013. A September 9, 2013 discharge summary stated that the Veteran had been hospitalized for suicidal and homicidal thoughts, and his diagnosis was posttraumatic stress disorder and depressive disorder. Pursuant to 38 C.F.R. § 4.29, a total disability rating (100 percent) will be assigned without regard to other provisions of the Rating Schedule when it is established that a service-connected disability has required hospital treatment in a VA or approved hospital for a period in excess of 21 days. 38 U.S.C. § 1155; 38 C.F.R. § 4.29. In this case, the Board does not dispute that the Veteran was hospitalized due to his service-connected posttraumatic stress disorder with depressive disorder. The evidence very clearly indicates, however, that the period of hospitalization was for 6 days, September 4 to September 9, 2013. The Veteran has not disputed that this was the length of the hospitalization or provided any evidence or argument indicating that they length of hospitalization was actually longer. As the evidence shows that the length of hospitalization was less than 21 days, the Veteran has not met the criteria for a temporary total disability evaluation due to hospitalization. Entitlement to a temporary total evaluation pursuant to 38 C.F.R. §§ 4.29 must therefore be denied. In reaching the conclusion above, the Board has again considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b). REASONS FOR REMAND Posttraumatic stress disorder and bilateral bunionectomies The Board remands these issues in order to obtain more recent VA examinations that will determine the current severity of these disabilities. The Veteran last attended VA examinations for these disorder in May 2013, i.e., over 5 years ago. Since that time, the Veteran’s VA treatment records show additional, on-going complaints related to his psychiatric symptoms and foot disorders. In September 2013, the Veteran was hospitalized due to homicidal and suicidal ideation, suggesting that his psychiatric symptoms may have substantially worsened. The Veteran has also submitted a 2013 record from the Podiatry Clinic at Fort Riley through TriCare, indicating that he has been receiving foot care there, though these treatment records have not been obtained and associated with the record. The Board requests that all relevant records be obtained and new, thorough VA examinations be held prior to further adjudication. The matters are REMANDED for the following action: 1. Obtain all available records from the VA Eastern Kansas Health Care System in Topeka, Kansas, and its affiliated facility in Junction City, since October 2017. If any such records cannot be located, specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. Then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Request that the Veteran complete a VA Form 21-4142 authorizing VA to secure any additional relevant treatment records, including all podiatry treatment received at Fort Riley through TriCare. The Veteran should be advised that he can also submit those records himself. If the Veteran provides a completed release form, then request the identified treatment records. At least two efforts should be made to obtain these records, and the Veteran and his attorney should be notified of any unsuccessful efforts. 3. Thereafter, schedule the Veteran for a VA foot examination to address the current nature and extent of any residual due to the bunionectomies. The examiner must be provided access to all files in Veteran’s VBMS and Virtual VA/Legacy files, and the physician must specify in the report that these files have been reviewed. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. A complete, well-reasoned rationale must be provided for any opinion offered. If any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 4. After completing directives one and two schedule the Veteran for a VA psychiatric examination with a psychiatrist or psychologist to address the current severity of his posttraumatic stress disorder and depressive disorder. The examiner must be provided access to all files in Veteran’s VBMS and Virtual VA/Legacy files, and must specify in the report that these files have been reviewed. The examiner must provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. A complete, well-reasoned rationale must be provided for any opinion offered. If any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the   examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mary E. Rude, Counsel