Citation Nr: 18159068 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 17-38 297 DATE: December 18, 2018 ORDER Service connection for bilateral sensorineural hearing loss is denied. Service connection for tinnitus is granted. Service connection for a thoracolumbar spine disorder (back disorder) is denied. Service connection for a left knee disorder is denied. Service connection for a right knee disorder is denied. Service connection for a toe disorder is denied. Service connection for a bilateral foot disorder is denied. An effective date prior to August 15, 2015 for service connection for posttraumatic stress disorder (PTSD) is denied. An effective date prior to October 25, 2016 for service connection for hypertension is denied. An effective date prior to October 25, 2016 for service connection for nephrolithiasis (kidney stones) is denied. A higher initial rating for PTSD in excess of 30 percent is denied. A higher initial rating of 10 percent, but no higher, for hypertension is granted. A higher initial rating for kidney stones in excess of 10 percent is denied. A total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran was exposed to acoustic trauma (loud noise) during service; the Veteran does not have a current disability of bilateral hearing loss for VA compensation purposes. 2. The Veteran currently has bilateral tinnitus; symptoms of tinnitus have been continuous since service separation. 3. The Veteran is currently diagnosed with mild degenerative changes in the thoracolumbar spine; the current back disorder is not etiologically related to an injury, disease, or event during service. 4. The Veteran is not currently diagnosed with a left knee disability. 5. The Veteran is currently diagnosed with right knee strain; the current right knee strain is not etiologically related to active service, including to the right knee cellulitis diagnosed and treated during service. 6. The Veteran is currently diagnosed with bilateral hammertoes; the Veteran did not sustain an in-service injury or disease of the toes; the current toe disorder is not etiologically related to an event during service. 7. The Veteran is currently diagnosed with bromhidrosis in the feet; the Veteran did not sustain an in-service injury or disease of the feet; the current bilateral foot disorder is not etiologically related to an event during service. 8. There were no communications received prior to August 14, 2015 that could be construed as a formal or informal claim for service connection for PTSD. 9. There were no communications received prior to October 25, 2016 that could be construed as a formal or informal claim for service connection for hypertension. 10. There were no communications received prior to October 25, 2016 that could be construed as a formal or informal claim for service connection for kidney stones. 11. For the entire initial rating period from August 14, 2015, the service-connected PTSD has nearly approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to symptoms such as depressed mood, anxiety, chronic sleep impairment, and difficulty establishing and maintaining effective work and social relationships, and the severity of the PTSD did not cause occupational and social impairment with reduced reliability and productivity. 12. For the entire initial rating period on appeal from October 25, 2016, the service-connected hypertension has required continuous use of medication for control; the service-connected hypertension has not manifested as diastolic blood pressure of predominantly 110 millimeters (mm.) or more, or systolic blood pressure of predominantly 200 mm. or more. 13. For the entire initial rating period on appeal from October 25, 2016, the service-connected kidney stones have manifested in occasional attacks of colic that do not become infected and do not require catheter drainage. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1137, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326, 3.385. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for a back disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 4. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 5. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 6. The criteria for service connection for a toe disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 7. The criteria for service connection for a bilateral foot disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 8. The criteria for an effective date prior to August 14, 2015 for service connection for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. 9. The criteria for an effective date prior to October 25, 2016 for service connection for hypertension have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. 10. The criteria for an effective date prior to October 25, 2016 for service connection for kidney stones have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. 11. For the entire initial rating period on appeal from August 14, 2015, the criteria for a higher initial rating in excess of 30 percent for PTSD have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 12. Resolving reasonable doubt in favor of the Veteran, for the entire initial rating period on appeal from October 25, 2016, the criteria for a higher 10 percent initial rating, but no higher, for hypertension have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7101. 13. For the entire initial rating period on appeal from October 25, 2016, the criteria for a higher initial rating in excess of 10 percent for kidney stones have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.115a, Diagnostic Codes 7508, 7509. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from March 2002 to February 2011. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). The Veteran currently has tinnitus (as an organic disease of the nervous system), which is a “chronic disease” under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system). Therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Service connection for bilateral sensorineural hearing loss For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has held that “the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss.” See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran contends that service connection is warranted for bilateral hearing loss resulting from in-service noise exposure. Specifically, in a November 2016 Statement, the Veteran asserts that hearing loss is related to exposure to acoustic trauma from high powered rifles ammunition and explosions. Initially, the Board finds that the Veteran experienced in-service acoustic trauma. As detailed above, the Veteran has reported exposure to acoustic trauma from various loud noise exposures during service, including from artillery fire and from explosions. The Veteran is competent to report noise exposure in service. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). Furthermore, the DD Form 214 reflects the Veteran’s military occupational specialty was as a rifleman and as a member of the Marine Corps Security Force, and that the Veteran participated in combat activity, which indicates highly probable exposure to acoustic trauma during service. Accordingly, the Board finds that in-service exposure to acoustic trauma has been established. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence shows the Veteran does not have a current hearing loss disability as defined by VA regulatory criteria under 38 C.F.R. § 3.385. In October 2015, the Veteran was provided a VA audiometric examination. The October 2015 VA examination report reflects the Veteran reported decreased auditory acuity following noise exposure from artillery fire while participating in combat activity. During the October 2015 VA audiometric examination, pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 20 25 LEFT 15 20 20 20 20 Speech recognition scores using the Maryland CNC Test revealed speech discrimination of 96 percent bilaterally. Upon conclusion of the October 2015 VA examination, the VA examiner found hearing acuity in both ears were normal and did not render a diagnosis for hearing loss. The October 2015 VA examination report does not show a current hearing loss disability as defined by 38 C.F.R. § 3.385. In evaluating a service connection claim, evidence of a current disability is an essential element, and, where not present, the claim under consideration cannot be substantiated. See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (“[c]ompensation for service connected injury is limited to those claims which show a present disability”). The Court held in Brammer v. Derwinski that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer, 3 Vet. App. at 225; see Rabideau v. Derwinski, 2 Vet. App. 141, 143 44 (1992); see also McClain, 21 Vet. App. 319; Romanowsky, 26 Vet. App. 289. Because a hearing loss disability as defined by the VA regulatory criteria at 38 C.F.R. § 3.385 is not demonstrated in this case, service connection must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service connection for tinnitus The Veteran generally contends that service connection for tinnitus is warranted. The Veteran asserts that he has had symptoms of tinnitus since service separation. See November 2016 Statement. Initially, the Board finds the Veteran is currently diagnosed with bilateral tinnitus. See October 2015 VA examination report. Additionally, as discussed above, the Board finds that in-service acoustic trauma has been established. After a review of all the evidence of record, lay and medical, the Board finds that the evidence is at least in equipoise on the question of whether symptoms of tinnitus have been continuous since service separation. The Veteran underwent a VA audiometric examination in October 2015. During the October 2015 VA examination, the Veteran reported the onset of tinnitus approximately two or three years ago. The Veteran reported occupational noise exposure from working in construction and welding since service separation. After a review of the history and testing of the Veteran, the VA examiner opined that it is less likely than not that the current tinnitus is the result of military service based on the Veteran’s reports that tinnitus had its onset two to three years ago; the VA examiner erroneously noted that the Veteran reported the onset of tinnitus occurred over ten years following service separation. Additionally, the VA examiner erroneously noted the Veteran did not participate in a hearing conservation program during active service, contrary to service treatment records. As such, the October 2015 VA examiner opined that the evidence suggests a post-service etiology for the current tinnitus; however, as the October 2015 VA examiner’s negative nexus opinion is based on an inaccurate medical history, the Board finds that it is of no probative value. As noted above, the Veteran also describes continuous symptoms of tinnitus since service separation in a November 2016 Statement. The Veteran’s statements are competent, credible, and probative. Resolving reasonable doubt in the Veteran’s favor, the Board finds that, based on evidence of continuous post-service symptoms of tinnitus, presumptive service connection for tinnitus is warranted under 38 C.F.R. § 3.303(b). 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As the criteria for presumptive service connection for tinnitus based on continuous post-service symptoms (38 C.F.R. § 3.303 (b)) are met, all other theories of service connection are rendered moot, with no remaining questions of law or fact to be decided. 38 U.S.C. § 7104. 3. Service connection for a thoracolumbar spine disorder The Veteran asserts that a back disorder is the result of carrying excessive loads, sitting in planes for extended periods of time, walking excessive distances, sleeping in vehicles, holes, cots, and on the ground for excessive durations during military service. See November 2016 Statement. Initially, the Board finds the Veteran is currently diagnosed with a back disorder. A February 2016 VA treatment record reflects X-rays of the lumbar spine revealed mild degenerative changes. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates the current back disorder is not related to active service. Service treatment records do not reflect any complaints, symptoms, diagnosis, or treatment for a back disorder or back pain. Additionally, service treatment records show the Veteran repeatedly denied symptoms of recurrent back pain throughout active service, and a February 2011 service treatment record reflects the Veteran denied experiencing any injury or illness for which he did not seek medical care. See February 2002 service treatment record; October 2004 service treatment record; March 2006 service treatment record; February 2011 service treatment record. A February 2011 service separation examination also found the Veteran’s spine to be clinically normal. Post-service treatment records show that the current back disorder was not diagnosed until February 2016. Furthermore, the evidence of record does not contain any competent medical opinion establishing a medical nexus between the current back disorder to any injury, disease, or event during service. For these reasons, the Board finds that the weight of the evidence demonstrates that the current back disorder was not incurred in or otherwise caused by active service. As the preponderance of the evidence is against the claim for service connection for a back disorder, the claim must be denied. 4. Service connection for a left knee disorder The Veteran asserts that service connection for a left disorder is warranted. See November 2016 Statement. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a currently diagnosed left knee disorder or functional impairment of the left knee. VA treatment records throughout the relevant claim period on appeal reflect generalized complaints of knee pain in February 2016, March 2016, and May 2016. Although February 2016, March 2016, and May 2016 VA treatment records show the Veteran reported knee pain, the Veteran was not diagnosed with a left knee disorder during those visits, and the evidence does not show functional impairment due to the knee pain. Aside from the February 2016, March 2016, and May 2016 VA treatment records, other treatment records throughout the relevant claim period on appeal do not reflect any complaints, treatment, or diagnosis for left knee pain or a left knee disorder. The term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Saunders v. Wilkie, 886 F.3d, 1356, 1368 (Fed. Cir. 2018) (holding that, to establish the presence of a disability, the veteran will need to show that pain reaches the level of functional impairment of earning capacity). Because the weight of the evidence demonstrates no current left knee disability, the claim for service connection for a left knee disorder must be denied. 5. Service connection for a right knee disorder The Veteran contends that a right knee disorder is the result of repeatedly marching for extended periods of time or distance while carrying excessive weight during service; additionally, the Veteran asserts a right knee disorder is etiologically related to cellulitis in the right knee diagnosed and treated during active service. See November 2016 Statement. At the outset, the Board finds the Veteran is currently diagnosed with a right knee disorder. An October 2015 VA examination report shows the Veteran is currently diagnosed with a right knee strain. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates the Veteran had cellulitis of the right knee during service that was treated and resolved and is not related to the currently diagnosed right knee disorder. A March 2004 service treatment record reflects the Veteran presented to the emergency room and was diagnosed with cellulitis in the right knee, which was treated with intravenous fluids and medication. In a follow-up appointment one week later, the Veteran reported taking the prescribed medication and feeling much better; the Veteran was instructed to return for further follow up appointments as needed. Service treatment records show the right knee cellulitis resolved after March 2004 as there were no further complaints of right knee pain thereafter. Subsequently, the Veteran denied symptoms of swollen, stiff, or painful joints and knee trouble as reflected in October 2004, March 2006, and February 2011 service treatment records, and a February 2011 service separation examination found the lower extremities to be clinically normal. The Veteran underwent a VA examination in October 2015, the examination report for which contains the VA examiner’s opinion that the current right knee disorder is less likely than not etiologically related to the right knee cellulitis treated during service. The VA examiner explained that the medical evidence of record does not support a causal relationship between the two conditions without the development of a septic joint. Based on the foregoing, the Board finds that the weight of the evidence is against service connection for a right knee disorder and the claim must be denied. 6. Service connection for a toe disorder 7. Service connection for a bilateral foot disorder The Veteran contends that “hammertoes” and bilateral foot pain is the related to the required footwear worn during active service that caused the little toe on both feet to tuck under the adjacent toe. See August 2016 Statement; November 2016 Statement. Initially, the Board finds the Veteran is currently diagnosed with a toe disorder and a bilateral foot disorder. A March 2016 VA treatment record reflects diagnoses for hammertoe on both feet and bromhidrosis. After a review of all the lay and medical evidence of record, the Board finds the weight of the evidence demonstrates that the current toe and bilateral foot disorders are not related to active service. Service treatment records do not reflect any complaints, symptoms, diagnosis, or treatment for any toe or foot related issues. Additionally, the Veteran denied experiencing any foot trouble throughout active service. See February 2002 service treatment record; March 2006 service treatment record; February 2011 service treatment record. Finally, service examination reports throughout active service found the Veteran’s feet to be clinically normal, including at the February 2011 service separation examination. Post-service treatment records reveal the current toe and bilateral foot disorders were not diagnosed until February 2016. Moreover, the evidence of record does not contain any competent medical opinion establishing a nexus between the current toe and bilateral foot disorders to any injury, disease, or event during service. For these reasons, the Board finds that the weight of the evidence demonstrates that the current toe and bilateral foots disorders were not caused by or otherwise etiologically related to active service. As the preponderance of the evidence is against the claims for service connection for a toe disorder and a bilateral foot disorder, the claims must be denied. Earlier Effective Date Legal Criteria Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. After a final disallowance of a claim, the effective is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(2). For claims received prior to March 24, 2015, as pertinent to this case, a “claim” is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1(p), 3.155(a); see also Servello v. Derwinski, 3 Vet. App. 196, 198 200 (1992). Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran’s duly authorized representative, may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). Effective March 24, 2015, a change in regulation requires claims be filed on standard forms, eliminating constructive receipt of claims and informal claims. See 38 C.F.R. §§ 3.1(p), 3.150, 3.155, 3.160(a). Instead of informal claims, the new regulation provides that a claimant may request an application for benefits, upon receipt of which, the Secretary shall notify the claimant of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a). Non-standard narrative communications/submissions - previously construed as informal claims - will be considered a request for an application for benefits. Standard Claims and Appeals Forms, 79 Fed. Reg. 57660, 57661 (Sept. 25, 2014) (where a claimant submits an informal claim, VA will deem it a request for an application for benefits). 8. An earlier effective date for service connection for PTSD The Veteran asserts that an earlier effective date for the award of service connection for PTSD is warranted because, had he filed his claim nine days earlier, he would have been awarded an additional year of compensation. See November 2016 Statement. In this case, the Board finds that an effective date earlier than August 14, 2015 for service connection for PTSD is not warranted. The Veteran submitted a formal claim for service connection for PTSD on August 14, 2015. There was no correspondence received by VA prior to August 14, 2015 that can be construed as a claim, either formal or informal, for service connection for PTSD. Furthermore, the Veteran has not asserted that a formal or informal claim for PTSD was received by VA earlier than August 14, 2015. On these facts, because the earliest effective date legally possible (August 14, 2015) has been assigned under 38 C.F.R. §§ 3.400(q)(2) and (r), and no effective date for service connection earlier than August 14, 2015 (date of receipt of claim for service connection for PTSD) is assignable, the appeal for an earlier effective date for service connection for PTSD is without legal merit, and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). For these reasons, the Board concludes that an effective date prior to August 14, 2015 for the award of service connection for PTSD is not warranted as a matter of law. 9. An earlier effective date for service connection for hypertension 10. An earlier effective date for service connection for kidney stones The Veteran generally asserts that earlier effective dates for the award of service connection for hypertension and kidney stones are warranted. See September 2017 Notice of Disagreement. In this case, the Board finds that effective dates earlier than October 25, 2016 for service connection for hypertension and kidney stones are not warranted. The Veteran submitted an intent to file a claim on October 25, 2016, and submitted a formal claim for service connection for hypertension and kidney stones on May 25, 2017. The Board finds that there was no correspondence received by VA prior to October 25, 2016 that can be construed as a claim, either formal or informal, for service connection for hypertension and kidney stones. Furthermore, the Veteran has not asserted that a formal or informal claim for hypertension and kidney stones was received by VA earlier than October 25, 2016. On these facts, because the earliest effective date legally possible (October 25, 2016) has been assigned under 38 C.F.R. §§ 3.400(q)(2) and (r), and no effective date for service connection earlier than October 25, 2016 (date of receipt of intent to file claim for service connection for hypertension and kidney stones) is assignable, the appeal for earlier effective dates for service connection for hypertension and kidney stones is without legal merit, and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). For these reasons, the Board concludes that effective dates prior to October 25, 2016 for the award of service connection for hypertension and kidney stones are not warranted as a matter of law. Disability Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 11. A higher initial rating for PTSD For the entire initial rating period on appeal from August 14, 2015, the Veteran is in receipt of an initial 30 percent rating for the service-connected PTSD under Diagnostic Code 9411. 38 C.F.R. § 4.130. The Veteran generally contends that a higher initial rating is warranted. See January 2016 Notice of Disagreement. Pertinent to this case, the General Rating Formula for Mental Disorders provides that a 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130. 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 satisfactorily, with routine behavior, self care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is provided when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is provided when there is evidence that the psychiatric disability more closely approximates 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); and inability to establish and maintain effective relationships. Id. A 100 percent rating requires evidence of 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; and memory loss for names of close relatives, own occupation, or own name. Id. 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, 117 (2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” 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 have caused occupational and social impairment in most of the referenced areas.” After a review of all the evidence, lay and medical, the Board finds that, for the entire initial rating period from August 25, 2010, the service-connected PTSD has more nearly approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to symptoms such as depressed mood, anxiety, chronic sleep impairment, and difficulty establishing and maintaining effective work and social relationships. The PTSD did not cause occupational and social impairment with reduced reliability and productivity for any period. The Veteran underwent a VA examination in October 2015. The October 2015 VA examination reports reflects findings that the service-connected PTSD has manifested in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The October 2015 VA examiner noted the Veteran’s symptoms include depressed mood, anxiety, chronic sleep impairment, and difficulty establishing and maintaining effective work and social relationships. A March 2016 VA treatment record reflects the Veteran endorsed symptoms of anxiety, depressed mood, avoidance, irritability, insomnia, nightmares, and intrusive thoughts, and reported that he experienced significant distress in more populous environments such as malls or grocery stores. The March 2016 VA provider noted the Veteran was alert, oriented, well-groomed and demonstrated normal behavior, speech, attitude, maintained good eye contact, full ranging affect that was appropriate, with intact thought content and processes, memory, judgment, but limited insight; the Veteran denied experiencing perceptual disturbances and suicidal or homicidal ideation. An April 2016 VA mental health treatment record shows the Veteran was observed to be alert and oriented, well-groomed, with intact thought content and thought processes that were logical, linear, and goal directed, intact memory, normal judgment; the Veteran denied experiencing perceptual disturbances and suicidal or homicidal ideation. The April 2016 VA provider assessed the level of impairment caused by the service-connected PTSD was mild. The Board has also considered a January 2016 lay statement from the Veteran’s spouse, wherein she describes the Veteran’s symptoms to include easily startled, sleep impairment, irritable mood, short tempered, hypervigilant, and that he had stopped taking care of his own personal hygiene. In August 2018, VA received a statement from the Veteran describing his PTSD symptoms as daily depression, neglect of personal hygiene, suicidal ideation, hypervigilance, social isolation, and impaired short- and long- term memory. The Board has carefully reviewed the lay and medical evidence of record and finds that the preponderance of the evidence is against the assignment of a higher initial disability rating in excess of 30 percent for the service connected PTSD for the entire initial rating period from August 14, 2015. The evidence of record shows the PTSD more nearly approximates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to symptoms such as depressed mood, anxiety, chronic sleep impairment, and difficulty establishing and maintaining effective work and social relationships, and the severity of the PTSD did not cause occupational and social impairment with reduced reliability and productivity. Although the Veteran reported severe psychiatric symptoms in the August 2018 statement such as suicidal ideation and impaired memory, these symptoms are inconsistent with the symptoms reported by the Veteran when seeking treatment and are inconsistent with observations noted by mental health providers. The October 2015 VA examination report and VA treatment records demonstrate the Veteran has been consistently observed to be alert, oriented and in touch with reality, without impairment of judgment, thought process, and memory; the Veteran also denied experiencing suicidal ideation during the October 2015 VA examination and when seeking mental health treatment in 2016. The evidence of record throughout the initial rating period on appeal from August 14, 2015 does not demonstrate symptoms such as panic attacks more than once a week, impaired judgment, or impaired abstract thinking at any time during the initial rating period on appeal. The Board has considered all the symptoms discussed above, including their severity, frequency, and duration. In evaluating these symptoms, the Board finds that the severity, frequency, and duration of the PTSD are more appropriately consistent with the symptoms contemplated by the 30 percent disability rating and do not more nearly approximate the symptoms contemplated for a 50 percent disability rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411. For these reasons, the Board finds that the preponderance of the evidence is against the appeal for a higher initial disability rating for PTSD in excess of 30 percent for the entire initial rating period from August 14, 2015. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 12. A higher initial rating for hypertension The Veteran is in receipt of a noncompensable (0 percent) initial disability rating for hypertension under 38 C.F.R. § 4.104, Diagnostic Code 7101, for the entire initial rating period from October 25, 2016. The Veteran generally asserts that a higher initial rating is warranted. See September 2017 Notice of Disagreement. Under Diagnostic Code 7101, a 10 percent rating is assigned for diastolic blood pressure predominately 100 or more, or; systolic blood pressure predominantly 160 or more, or; is the minimum rating for an individual with a history of diastolic blood pressure predominantly 100 or more who requires continuous medication for control. A 20 percent disability rating is assigned for diastolic readings of predominantly 110 or more or systolic readings of 200 or more. A 40 percent disability rating is assigned for diastolic readings of predominantly 120 or more. A 60 percent disability rating is assigned for diastolic readings of predominantly of 130 or more. 38 C.F.R. § 4.104. The Veteran underwent a VA examination in June 2017, the examination report for which shows the hypertension required continuous medication for control. While the evidence does not show a history of diastolic blood pressure predominantly 100 or more to meet all the 10 percent rating criteria under Diagnostic Code 7101, the Board resolves reasonable doubt in the Veteran’s favor by applying 38 C.F.R. § 4.21 to find that a higher initial 10 percent disability rating is warranted under Diagnostic Code 7101. See 38 C.F.R. § 4.21 (providing that it is not expected that all cases will show all the findings specified). The Board further finds that the evidence is against finding that the systolic blood pressure is predominately 200 mm. or more, or that diastolic blood pressure is predominantly 110 mm. or more (the criteria for a 20 percent rating). During the June 2017 VA examination, the Veteran’s blood pressure measurements were as follows: 140/90, 144/90, and 142/90. VA treatment records throughout the initial rating period on appeal also do not show blood pressure readings with systolic blood pressure was measured above 200 mm. at any time, or that diastolic blood pressure was measured above 110 mm. at any time, let alone that systolic and diastolic blood pressure were predominantly measured above 200 mm. and 110 mm., respectively, as is required for a higher 20 percent initial disability rating. As such, the criteria for a higher initial disability rating in excess of 10 percent for the service-connected hypertension have not been met. 13. A higher initial rating for kidney stones The Veteran is in receipt of an initial 10 percent disability rating for the service-connected kidney stones under Diagnostic Code 7508 for the entire initial rating period on appeal from October 25, 2016. Under Diagnostic Code 7508, nephrolithiasis is rated as hydronephrosis under Diagnostic Code 7509, except a veteran is entitled to a 30 percent rating under Diagnostic Code 7508 when there is recurrent stone formation requiring one or more of the following: (1) diet therapy, (2) drug therapy, or (3) invasive or noninvasive procedures more than two times per year. 38 C.F.R. § 4.115b. Under Diagnostic Code 7509, a 10 percent disability rating is assigned for nephrosis manifested by only an occasional attack of colic, without infection (pyonephrosis) or need for catheter drainage. A 20 percent disability rating is warranted where there are frequent attacks of colic and catheter drainage is required. A maximum schedular 30 percent disability rating is assigned where there are frequent attacks of colic with infection and impaired kidney function. Severe disability is to be rated based on renal dysfunction. 38 C.F.R. § 4.115b. The Veteran underwent a VA examination in June 2017, during which he reported passing kidney stones every year. The June 2017 VA examination report reflects the service-connected kidney stones do not require continuous medication and that the Veteran does not have renal dysfunction. The June 2017 VA examiner noted that the Veteran has not had treatment for recurrent stone formation and that the kidney stones have manifested in symptoms of occasional attacks of colic. Based on the foregoing, the Board finds that the weight of the lay and medical evidence does not demonstrate recurrent stone formation requiring diet therapy, drug therapy, or invasive or non-invasive procedures more than twice a year (criteria for a 30 percent rating under Diagnostic Code 7508), or frequent attacks of colic, requiring catheter drainage (criteria for a 20 percent rating under Diagnostic Code 7509). As such, the criteria for a higher initial disability rating in excess of 10 percent for the service-connected kidney stones have not been met. REASONS FOR REMAND Entitlement to a TDIU is remanded. A claim for a TDIU is part of a rating issue when such claim is raised by the record or the Veteran during the rating period. Rice v. Shinseki, 22 Vet. App. 447 (2009). The service-connected disabilities are PTSD (30 percent disabling), kidney stones (10 percent disabling), hypertension (10 percent disabling), and the now service-connected tinnitus (to be rated 10 percent disabling). In a September 2017 Notice of Disagreement and March 2018 correspondence, the Veteran submitted evidence and arguments that he has been unable to work due to the service-connected disabilities. The Board finds that the evidence has reasonably raised a claim for a TDIU in conjunction with the increased rating issues decided herein; however, a remand is required prior to adjudication of the claim for a TDIU because the Veteran has not been provided adequate VCAA notice regarding substantiation of TDIU, nor has the Agency of Original Jurisdiction (AOJ) adjudicated TDIU in the first instance. The matter is REMANDED for the following action: 1. The AOJ should send the Veteran VCAA notice that addresses a claim for a TDIU. 2. Send the Veteran an Individual Unemployability form (VA Form 21-8940). The specific information in that form is requested from the Veteran; the Veteran should complete and return this form. Failure to complete this form may result in denial of the TDIU claim. See 38 C.F.R. § 3.158(a). 3. After all available evidence has been associated with the record, the AOJ should review the evidence and determine if further development is warranted for TDIU. The AOJ should take any additional development as deemed necessary. 4. After all development has been completed, the AOJ should adjudicate the issue of entitlement to a TDIU based on the evidence of record. If any aspect of the appeal remains denied, provide the Veteran and representative with a supplemental statement of the case. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Choi, Associate Counsel