Citation Nr: 18158365 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-53 355A DATE: December 14, 2018 ORDER Entitlement to an earlier effective date prior to March 25, 2013, for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to rating in excess of 70 percent for PTSD is denied. Entitlement to a rating in excess of 10 percent for tinnitus is denied. New and material evidence having been submitted, the claim of entitlement to service connection for a skin condition is reopened. Service connection for a skin condition is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. No formal or informal claim for service connection for PTSD was received prior to March 25, 2013. 2. At no point during the appeal period has the Veteran’s PTSD resulted in total occupational and social impairment. 3. The Veteran is receiving the maximum schedular rating for tinnitus. 4. Service connection for a skin condition was denied in a February 2000 Board decision in part on the basis that there was no evidence of a current disability. 5. Evidence received since the February 2000 Board decision relates to unestablished facts necessary to substantiate the service connection claim for a skin condition. 6. The Veteran does not have a current skin disability. 7. The evidence of record demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to March 25, 2013, for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5103, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 3.400 (2017). 2. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.130, DC 9411 (2017). 3. The criteria for the assignment of a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1114, 1155; 38 C.F.R. §§ 4.87, Diagnostic Code (DC) 6260. 4. New and material evidence has been received, and the Veteran’s claim for service connection for a skin condition is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 5. . The criteria for service connection for a skin condition are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 6. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have been satisfied. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1969 to August 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2015 and February 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran’s representative asserted that the Veteran’s service-connected disabilities prevent him from work in a May 2017 brief. As such, the issue of entitlement to TDIU has been raised by the record and is part and parcel to the Veteran’s increased ratings claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran filed a notice of disagreement (NOD) for the denial of a rating in excess of 10 percent for tinnitus in March 2015. He indicated on the NOD that he also disagreed with the effective date of the award of 10 percent for tinnitus. As the RO continued the 10 percent evaluation from the date of the initial claim, there was no issue of the effective date raised by the RO’s decision. As such, there is no pending claim for entitlement to an earlier effective date for tinnitus. Earlier Effective Date The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.400 (b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. Under 38 C.F.R. § 3.400 (b)(2)(ii), the effective date for presumptive service connection will be the date entitlement arose, if a claim is received within one year after separation from active service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. 79 Fed. Reg. 57660 (Sept 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claims in this case were filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). A report of VA examination or hospitalization can be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b)(1) (in effect prior to March 24, 2014). The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established, or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital admission. See Norris v. West, 12 Vet. App. 413, 417 (1999). PTSD The Veteran seeks an effective date earlier than March 25, 2013, for the grant of service connection for PTSD. Following a review of the record, the Board finds that an earlier effective date is not warranted. The Veteran submitted an informal claim on March 25, 2013 for, amongst other things, entitlement to service connection for PTSD. There is no evidence of a formal or informal claim for entitlement to service connection for a PTSD prior to this claim. The Board is bound by law on this matter, and is without authority to grant the benefit sought on an equitable basis. As no statutory or regulatory exceptions to the rule governing the effective date here is for application, there is no legal basis to grant the appeal. Based on this record, no effective date earlier than March 25, 2013, is warranted for service connection of the Veteran’s PTSD. As this appeal must be denied as a matter of law, the benefit of the doubt rule is not for application. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).   Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Where entitlement to compensation has already been established and an increase in the assigned rating is at issue, it is the present level of disability that is of primary concern. Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). The Veteran’s PTSD has been rated as 70 percent disabling under Diagnostic Code 9411 from March 25, 2013. PTSD Under Diagnostic Code 9411, the General Rating Formula for Mental Disorders is used for PTSD. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Finally, a 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2016). The use of the term ‘such as’ in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase ‘such symptoms as,’ followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms caused occupational and social impairment in most of the referenced areas.” When evaluating a mental disorder, the Board shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). 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. Id. In August 2014, a VA staff psychologist submitted a statement indicating that the Veteran experienced daily intrusive memories and nightmares. He avoided crowds and social situations, and had an “escape plan” when he did go out. The Veteran had difficulty concentrating on things like reading books or watching television, had difficulty sleeping, was frequently irritable, and had a long history of angry outbursts. The Veteran received a VA examination in December 2014, and the examiner noted that the Veteran’s PTSD symptoms caused occupational and social impairment with reduced reliability and productivity. He worked as a computer operator, but was not able to maintain a consistent work history due to alcohol use and was currently retired. The Veteran was married to his second wife, but the two had separated. He did not think the two would get back together due to his anger and violent behavior. The examiner noted symptoms that included depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. The Veteran received another VA examination in November 2016, and the examiner noted that the Veteran had been married to his second wife for 47 years. They lived together, and she was described as “his greatest support system.” The Veteran and his wife had three adult children, but the Veteran was described as socially isolated and withdrawn. Upon examination, the Veteran’s attention was normal and his concentration appeared variable. His thought content was appropriate for the circumstances, and his organization of thought was goal directed. There were no overt hallucinations. The examiner noted that the veteran was insecure and unsure of himself over the course of the social interaction. Having reviewed the complete record, the Board finds that the preponderance of the evidence is against granting a rating in excess of 70 percent. The medical evidence is highly probative and establishes that the Veteran enjoyed a positive relationship with his wife. Although the two had separated during the December 2014 examination, his wife was described as his greatest support system almost two years later. There is also no evidence of strained relationship with his children. At no point during the period on appeal was the Veteran’s PTSD manifested by gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, or memory loss for names of close relatives, own occupation or own name, or an overall level of symptomatology supportive of a higher rating. The Board finds that the evidence supports no more than a 70 percent rating under Diagnostic Code 941, which contemplates occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment thinking, or mood. Consequently, the Board finds that the greater weight of the evidence is against granting an evaluation in excess of 70 percent. Tinnitus Tinnitus is rated under DC 6260 which includes a 10 percent rating for recurrent tinnitus with no higher ratings available. Notes for this DC state a separate evaluation may be assigned under DC 6100 (hearing loss), DC 6200 (chronic suppurative otitis media, mastoiditis, or cholsteatoma), and DC 6204 (peripheral vestibular disorders); assign only a single evaluation for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head; and do not evaluate objective tinnitus (in which the sound is audible to other people and has a definable cause that may or may not be pathologic) under this DC, but evaluate it as part of any underlying condition causing it. The Veteran was service connected for tinnitus in November 1983. The RO found that he complained of consistent tinnitus with audiometric configuration supporting a history of acoustic trauma and awarded a 10 percent evaluation. He filed a new claim in October 2013 for, amongst other things, ringing in his ears. The current 10 percent rating assigned for the Veteran’s tinnitus is intended to compensate for all of these demonstrated symptoms associated with the condition and is the maximum schedular rating. The degree of disability, that is, the degree to which tinnitus impairs the Veteran’s earning capacity, is the same regardless of how the tinnitus is perceived. See Schedule for Rating Disabilities: Evaluation of Tinnitus, 68 Fed. Reg. 25822-01 (May 14, 2003). Remand for another VA examination is not warranted because there is no reasonable possibility that further assistance would substantiate this claim. See 38 C.F.R. § 3.159 (d). In addition, the Board notes that the amount of financial compensation provided to veterans for disability ratings is set by law. See 38 U.S.C. § 1114. There is no basis in law for assigning a higher rating under Diagnostic Code 6260. See Smith v. Nicholson, 451 F. 3d 1344 (Fed. Cir. 2006). Entitlement to a rating in excess of 10 percent for tinnitus is denied. New and Material Evidence Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). “New evidence” means existing evidence not previously submitted to the VA. “Material evidence” means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In this case, the Veteran was denied entitlement to service connection for a skin disorder in a February 2000 Board decision. He did not appeal this decision and the February 2000 Board decision became final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). Subsequently, VA has obtained additional medical evidence since the last decision became final. Upon review, the Board finds this evidence is both new and material evidence sufficient to reopen the Veteran’s claim. The evidence is new in that it was not of record at the time of the last final rating decision, and the evidence is “material” because it relates to an unestablished fact necessary to substantiate the underlying service connection claim. As a result, the Board finds that the evidence raises a reasonable possibility of substantiating the Veteran’s claim. 38 C.F.R. § 3.156 (a). As the credibility of new evidence is generally presumed, the Veteran’s claim of entitlement to service connection for a skin condition is reopened. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The Board has addressed the underlying merits of the claim below. The Veteran is not prejudiced by this action as the RO has also reopened and adjudicated the claim on the underlying merits. Hickson v. Shinseki, 23 Vet. App. 394 (2010). Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Skin Condition Entitlement to service connection for a skin condition must be denied. The Veteran received a VA examination in November 2016 and the examiner noted a diagnosis of dermatitis from 1970 that had resolved. The Veteran stated that the condition began with an itch but broke into a rash. The neck and foot area was painful, and he had blisters that lasted for a few years. The examiner noted that the Veteran had a self-reported history of recurrent skin lesions, but he could find no skin lesions or signs of a current skin condition. The Board finds the November 2016 VA examination highly probative and concludes that there is no current disability; thus, the first element of the service connection claim has not been satisfied. Congress specifically limits entitlement for service connected disease or injury to cases where incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, in this case, without evidence of a current disability, direct service connection for a skin condition must be denied. TDIU TDIU may be granted where a Veteran’s service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2017). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2015) that an informal claim “identify the benefit sought” has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The central inquiry is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Marginal employment shall not be considered as constituting substantially gainful employment. 38 C.F.R. § 4.16(a). VA policy is to grant TDIU, regardless of the percentages, when service connected disability actually renders a veteran unemployable. 38 C.F.R. § 4.16(b). Where there is evidence that a veteran is unemployable by reason of service-connected disability, but does not meet the percentage requirements, the Board is required to remand the claim, so that it can be referred to VA’s Director of Compensation Service for adjudication in accordance with 38 C.F.R. § 4.16(b). Once a referral for an extraschedular TDIU rating under § 4.16(b) is made by the Board, the Director of Compensation Service then determines whether an extraschedular TDIU evaluation under § 4.16(b) is warranted. At that juncture, only then does the Board have jurisdiction to decide the TDIU claim on the merits when it returns. The Veteran’s service-connected disabilities include: (i) PTSD (70 percent) and (ii) tinnitus (10 percent). His combined schedular disability was 70 percent from March 25, 2013. At the December 2014 VA examination, the examiner noted that the Veteran went to school for customer engineering after service. He found work as a computer operator, but was not able to maintain a consistent work history due to alcohol abuse. The Veteran, however, was currently retired. In October 2016, a VA clinical psychologist submitted correspondence indicating that the Veteran had been treated by mental health staff in the VA healthcare system since 2013. The Veteran reported difficulties gaining and maintaining employment due to his PTSD symptoms. Dr. H. H.-G. submitted a Residual Functional Capacity Evaluation for the Veteran in November 2016 and indicated that the Veteran, for more than three days per month, the Veteran would miss work, need to leave early, and not be able to stay focused for at least seven hours of an eight-hour work day due to his mental problems. Dr. H. H.-G. also submitted a vocational assessment in November 2016 and stated that the Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his PTSD. The Veteran described not getting enough restful sleep and feeling fatigued, and Dr. H. H.-G. indicated that this would be a safety issue. He had difficulty maintaining and sustaining a steady mood, and reported issues with trust. Furthermore, his issues with anxiety were a safety hazard on the job. The Veteran’s poor interpersonal skills and trust issues would create an increase in paranoia, and he would struggle with appropriate workplace interaction. Dr. H. H.-G. concluded that employers note higher distractibility, absenteeism and emotional turmoil as inappropriate in the workplace. As such, the Veteran’s PTSD symptoms were preventing him from maintaining substantially gainful employment. The Board will resolve reasonable doubt in the Veteran’s favor and award entitlement to TDIU. Based on the evidence presented in this case, the Board finds that the evidence supports a finding that the functional impairment associated with the Veteran’s disabilities is of such nature and severity as to preclude substantially gainful employment. The vocational rehabilitation study was highly probative in evaluating the Veteran’s claim. In this regard, the specialist provided a thorough rationale on the Veteran’s inability to obtain substantially gainful employment due to his service-connected PTSD. His symptoms manifested to such a severe degree that, according to Dr. H. H.-G., any potential employers would find it almost impossible to accommodate him. Therefore, resolving reasonable doubt in the Veteran’s favor, the Board finds that the evidence shows he is entitled to an award of TDIU. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel