Citation Nr: 18159385
Decision Date: 12/19/18	Archive Date: 12/18/18

DOCKET NO. 16-44 466
DATE:	December 19, 2018
ORDER
Entitlement to service connection for diabetes mellitus type II is denied.
Entitlement to service connection for a heart disability is denied.
Entitlement to service connection for a stroke is denied.
Entitlement to a 70 percent evaluation, but no higher, for unspecified anxiety disorder is granted.
Entitlement to a rating of 10 percent, but no higher, for right foot status post exostosis is granted.
Entitlement to a rating of 10 percent, but no higher, for left foot status post exostosis is granted.
Entitlement to a compensable evaluation for bilateral big toe surgery scars is denied.
Entitlement to a 10 percent disability rating for multiple noncompensable service-connected disabilities under 38 C.F.R. § 3.324 is denied.
Entitlement to an effective date prior to March 19, 2014 for the grant of service connection for unspecified anxiety disorder is denied.
Entitlement to an effective date of March 28, 2012 for the grant of service connection for bilateral big toe surgery scars is granted.
Entitlement to an effective date prior to August 23, 2006 for the grant of service connection for right foot status post exostosis is dismissed.
Entitlement to an effective date prior to August 23, 2006 for the grant of service connection for left foot status post exostosis is dismissed.
Entitlement to an effective date of March 28, 2013 for the grant of an increased rating for right foot status post exostosis is granted.
Entitlement to an effective date of March 28, 2013 for the grant of an increased rating for left foot status post exostosis is granted.
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 19, 2014 is denied.
Entitlement to TDIU from March 19, 2014 is granted.
FINDINGS OF FACT
1. The Veteran’s diabetes mellitus type II was not incurred in or otherwise related to his military service.
2. The Veteran does not have a heart disability.
3. The Veteran’s strokes were not incurred in or otherwise related to his military service.
4. The evidence is at least in equipoise that the Veteran’s unspecified anxiety disorder manifested in occupational and social impairment, with deficiencies in most areas, such as work, judgment, thinking, and mood.
5. After resolving reasonable doubt in the Veteran’s favor, his pain and stiffness resulting for his right and left foot status post exostosis is moderate in severity.
6. The Veteran’s scars are neither painful nor unstable, and have a total area of approximately one square centimeter (sq. cm.).
7. The Veteran had compensable service-connected disabilities during the entire appeal period.
8. VA first received a claim for benefits related to any psychological disorder on March 19, 2014.
9. In April 2007, the Agency of Original Jurisdiction (AOJ) denied service connection for bilateral scarring, but granted service connection for right and left foot status post exostosis, effective August 23, 2006. The Veteran received notification of that decision the same month. The Veteran did not appeal the decision, nor was new evidence submitted within one year of the decision. Thus, the April 2007 rating decision became final.
10. It is factually ascertainable that the Veteran had bilateral big toe surgery scars as of March 28, 2012.
11. After the April 2007 rating decision became final, VA first received a claim for increased ratings for the Veteran’s right and left foot status post exostosis on March 28, 2013. 
12. It is not factually ascertainable that the Veteran’s right and left foot status post exostosis worsened in the one-year period prior to March 28, 2013. 
13. Prior to March 19, 2014, the Veteran’s combined rating for his service connected disabilities is 30 percent and his service-connected disabilities did not prevent him for securing or following substantially gainful employment.
14. From March 19, 2014, after resolving reasonable doubt in the Veteran’s favor, his unspecified anxiety disorder renders him unable to secure or follow substantially gainful employment.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).
2. The criteria for entitlement to service connection for a heart disability have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).
3. The criteria for entitlement to service connection for a stroke have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).
4. The criteria for entitlement to a 70 percent evaluation, but no higher, for unspecified anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (Code) 9400 (2017).
5. The criteria for entitlement to a rating of 10 percent, but no higher, for right foot status post exostosis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Codes 5003, 5015, 5284 (2017).
6. The criteria for entitlement to a rating of 10 percent, but no higher, for left foot status post exostosis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Code 5003, 5015, 5284 (2017).
7. The criteria for entitlement to a compensable evaluation for bilateral big toe surgery scars have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.31, 4.118, Code 7805 (2017); 83 Fed. Reg. 32592 (July 13, 2018).
8. The criteria for entitlement to a 10 percent disability rating for multiple noncompensable service-connected disabilities under 38 C.F.R. § 3.324 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.324 (2017).
9. The criteria for entitlement to an effective date prior to March 19, 2014 for the grant of service connection for unspecified anxiety disorder have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2017).
10. The April 2007 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017).
11. The criteria for entitlement to an effective date of March 28, 2012, but no earlier, for the grant of service connection for bilateral big toe surgery scars have been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2017).
12. The criteria for dismissal of entitlement to an effective date prior to August 23, 2006, for the grant of service connection for right foot status post exostosis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110(a), 7105 (2012); 38 C.F.R. §§ 3.159, 3.400, 20.302 (2017); Rudd v. Nicholson, 20 Vet. App. 296 (2006).
13. The criteria for dismissal of entitlement to an effective date prior to August 23, 2006, for the grant of service connection for left foot status post exostosis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110(a), 7105 (2012); 38 C.F.R. §§ 3.159, 3.400, 20.302 (2017); Rudd v. Nicholson, 20 Vet. App. 296 (2006).
14. The criteria for entitlement to an effective date of March 28, 2013, but no earlier, for the grant of an increased rating for right foot status post exostosis have been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2017).
15. The criteria for entitlement to an effective date of March 28, 2013, but no earlier, for the grant of an increased rating for left foot status post exostosis have been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2017). 
16. Prior to March 19, 2014, the criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2017).
17. From March 19, 2014, the criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from May 1966 to February 1970. 
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA). 
The record reflects that the Veteran’s service-connected disabilities may prevent him from working. See November 2015 private evaluation. Because a TDIU rating is inherent in any claim for an increased rating, see Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board has assumed jurisdiction over the issue.
In its August 2016 statement of the case (SOC), the AOJ adjudicated the issues of entitlement to an effective date for “service connection” for right and left status post exostosis “prior to March 19, 2014.” The actual effective date of service connection for these issues is August 23, 2006, which was assigned in an April 2007 rating decision. Because the Veteran appealed all the issues in the August 2016 SOC and it is unclear whether the August 2016 SOC was attempting to adjudicate entitlement to earlier effectives dates for service connection rather than increased ratings, or vice versa, for these issues, the Board has taken jurisdiction of both sets of effective date issues and has properly recharacterized them.
Service Connection
Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).
Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) a service-connected disability; and (3) that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995).
When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
1. Entitlement to service connection for diabetes mellitus type II.
At the outset, the Board finds that a remand for a VA examination pursuant to McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) is not appropriate. A Veteran is entitled to a VA examination if there is, amongst other requirements, evidence establishing (i) an event, injury, or disease occurred in service, or certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (ii) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability. Id. at 82. The Veteran has provided no evidence that his diabetes was incurred in service or that his service qualifies for any presumption of service connection, such as exposure to herbicide agents. See 38 C.F.R. §§ 3.307, 3.309. Indeed, the Veteran has not stated why he believes his diabetes mellitus type II is related to his service; his only statement regarding causation reflects that he believed his diabetes is related to his prostate operation, which is a non-service-connected disability. See October 2012 VA treatment records. Thus, because the Veteran has not provided necessary evidence to trigger the need for a VA examination, remand is inappropriate.
The Veteran is diagnosed with diabetes mellitus type II, see, e.g., May 2013 VA treatment records, and was first diagnosed with this disability sometime in 2012. See August 2012 and May 2014 VA treatment records (reporting that he was diagnosed with diabetes two years previously). His service treatment records (STRs) are silent for symptoms related to diabetes. In October 2012, the Veteran reported that there is a strong history of diabetes from his father. He believed his father’s diabetes was related to his heart operation and thus the Veteran believed his own prostate operation caused his diabetes. See October 2012 VA treatment records.
The preponderance of the evidence reflects the Veteran’s diabetes mellitus type II was not incurred in or otherwise related to his service. The record is completely silent as to any association between the currently diagnosed diabetes mellitus and service.  Significantly, and as noted above, the Veteran has not brought forth any argument on how his diabetes mellitus was caused by service. While diabetes is a presumptive disease associated with exposure to herbicide agents, there is no evidence and the Veteran has not argued that he was exposed to herbicide agents during service. Thus, because the evidence does not reflect that the Veteran’s diabetes mellitus type II was either incurred in or related to his active duty service, service connection is not warranted.
2. Entitlement to service connection for a heart disability.
At the outset, the Board finds that a remand for a VA examination pursuant to McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) is not appropriate. A Veteran is entitled to a VA examination if there is, amongst other requirements, competent evidence of a current disability or persistent or recurrent symptoms of a disability. Id. at 81. There is no evidence the Veteran has a heart disability or persistent or recurrent symptoms of a heart disability. Indeed, the private medical records submitted by the Veteran reflect that he was not diagnosed with a heart disability, even though he had abnormal testing. Although a physician stated that he “suspect[ed]” a mostly fixed inferior defect, the Board considers this speculative and not evidence of a heart disability or persistent or recurrent symptoms. Moreover, that treatment record is dated far prior to the Veteran’s claim for benefits. See September 2008 private treatment records. Because the Veteran has not met the requirements necessary to be entitled to a VA examination, remand is not appropriate.
Moreover, in the absence of a current diagnosed disability, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). 
The Veteran’s VA and private treatment records do not reflect a heart disability. See, e.g., April 2014 VA treatment records; September 2008 private treatment records. Because the Veteran does not have a currently diagnosed heart disability, service connection is not warranted.
3. Entitlement to service connection for a stroke.
As an initial matter, the Board finds that remand for a VA examination pursuant to McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) is not appropriate. As discussed before, a Veteran is entitled to a VA examination if there is, amongst other requirements, evidence establishing (i) an event, injury, or disease occurred in service, or certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (ii) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability. Id. at 82. The Veteran has provided no evidence and he has not specifically argued that his strokes are related to service, that they occurred in service or were related to his military service. Although the Veteran stated that his strokes are related to heart disease, see March 2014 VA Form 21-526b, he is not service-connected for a heart disability. Thus, because the Veteran has not provided necessary evidence to trigger the need for a VA examination, remand is not necessary.
The Veteran has a history of strokes or transient ischemic attacks (TIAs) prior to and during the appeal period. See, e.g., March 2010 and April 2014 VA treatment records. As previously discussed, the Veteran has provided no evidence that his strokes occurred in service or are otherwise related to service. Although he stated that his strokes may be related to heart disease, see March 2014 VA Form 21-526b, he is not service-connected for any heart disability. Because the evidence does not reflect that his strokes were incurred in or otherwise related to his military service, service connection is not warranted.
Increased Rating
Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4.
When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In every instance where the rating schedule does not provide a zero percent rating for a Code, a zero percent rating must be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App, 119 (1999).
1. Entitlement to an evaluation in excess of 30 percent for unspecified anxiety disorder.
The Veteran’s unspecified anxiety disorder is currently rated as 30 percent disabling under the General Rating Formula for Mental Disorders (General Formula). A 30 percent rating is warranted 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). This may be due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and/or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Code 9400.
A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity. This may be 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 evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). This may be 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.
A 100 percent evaluation is warranted for total occupational and social impairment. This may be 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. Id.
The list of symptoms in the General Formula is not intended to constitute an exhaustive list, but provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126.
As relevant to this case, the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), recommended that the use of Global Assessment of Functioning (GAF) scores be dropped for several reasons, including their conceptual lack of clarity and questionable psychometrics in routine practice. The Board recognizes the Court’s holding in Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) regarding the importance of GAF scores, however, as the medical community has determined that GAF scores are an unreliable measure of a psychiatric disability, the Board assigns the GAF scores mentioned in the record no probative value, and will not discuss them specifically. See also Golden v. Shulkin, 29 Vet, App. 221 (2018).
During an August 2014 VA examination, the Veteran reported that he had lived with his mother for approximately one year, but the relationship had “gone downhill.” In fact, she apparently told him the day prior to the evaluation that she wanted him to move out of her home. He described the relationship with his brother as being not particularly good or supportive. The Veteran had a few friends, but stated that he typically stayed at his mother’s house reading books, watching television, and “walking through the greenways” looking at different birds. He was recently separated from his wife, had no relationship with his stepdaughter, and had limited contact with his son. They spoke only as needed. He was laid off in 2010 and had not worked since that time. See August 2014 VA examination.
The August 2014 VA examiner opined the Veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Reported symptoms were depressed mood, anxiety, chronic sleep impairment, and mild memory loss, such as forgetting names, directions or recent events. The Veteran was somewhat irritable but presented with good hygiene and grooming. His speech was slightly pressured but otherwise within normal limits. He was alert, attentive, and oriented to person, place, time, and situation. Id.
The August 2014 VA examiner noted that the Veteran presented with abstract reasoning. His thought processes were fairly tangential, and he required significant (and repeated) redirection throughout the course of the interview. There was no evidence of delusional thought content or perceptual disturbances (e.g., auditory or visual hallucinations). The Veteran characterized his current mood as being reasonably good (denying anxiety and depression), but he presented as slightly anxious and irritable. He described his mood over the past month as being fairly consistent with his current presentation. He denied any recent suicidal ideations or intentions. Id.
As a result of testing during the August 2014 VA examination, the Veteran was found to have symptoms suggesting a “cry for help” even though his tendency was to minimize his mental health symptoms during his interview. Beck Inventory testing placed him in the “severe anxiety” range and “severe depression” range. Id.
Additional evidence shows the Veteran’s brother has noted the Veteran was testy, easily agitated, argumentative, and unwilling to listen to people, which had worsened throughout the years but continued through the present. See July 2015 statement.
In July 2015 VA treatment records, the Veteran reported irritability and anxiety and was noted to be very hostile, exhibited splitting, and seemed to have poor insight and judgment. See July 2015 VA treatment records.
In November 2015, the Veteran underwent a private evaluation with Dr. H. H.G., PhD, HSPP. The Veteran reported that he continued to live with his mother, but kept his struggles to himself, not wanting to burden others. He was socially isolated and withdrawn, and could not enjoy simple activities. Dr. H.G. opined the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and mood. His exhibited symptoms included depressed mood; anxiety, suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; flattened effect; impaired judgment; disturbances of motivation and mood; difficulty in establish and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; and an inability to establish and maintain effective relationships. She opined that the severity of his symptoms related back to his original claim for benefits in March 2014. See November 2015 private evaluation.
Dr. H.G. noted that the Veteran struggled to remember basic information. His speech flow as normal, although he was brief with information offered. His thought content was appropriate for the circumstances. Organization of thought was goal directed and there were no reports of overt hallucinations. His judgment was average and his mood was anxious and nervous. Affect was restricted. She agreed with the August 2014 VA examiner that the Veteran minimized his symptoms and that his symptoms were consistent with the Beck Inventory testing noted in the August 2014 VA examination. Id.
After review of the record, the Board finds that the evidence is at least in equipoise that the Veteran’s unspecified anxiety disorder manifested in occupational and social impairment, with deficiencies in most areas, such as work, judgment, thinking, and mood. The Board recognizes that the August 2014 VA examiner characterized the Veteran’s symptoms as mild; however, a review of the symptoms reported within the examination report show a more severe symptomatology picture.  Notably, the symptoms described by the August 2014 VA examiner and Dr. H.G. about severity of the symptomatology were similar, such as poor relationships with family, anxious mood, and impaired thought processes. Dr. H.G. noted that she agreed with the August 2014 VA examiner that the Veteran minimized his symptoms and that the Beck Inventory testing results reflecting severe depression and anxiety were consistent with her observations. Additionally, Dr. H.G. noted that she believed the Veteran’s symptoms had remained the same since March 2014, and, based on the August 2014 VA examiner’s observations, the Board notes that his areas of impairment do not appear to have changed. Thus, the Board finds the evidence is at least in equipoise that a 70 percent evaluation is more nearly approximated.
However, the Board finds that a 100 percent rating is not warranted. To warrant a 100 percent disability rating the evidence should demonstrate total occupational and social impairment to be assigned a 100 percent rating. Indeed, the record reflects that the Veteran continues to have a relationship with his mother and son, even if strained, and that he had a few friends. Therefore, total social impairment is not shown by the evidence of record. Further, the Board has considered, but not solely relied upon, the symptoms listed in the General Formula for a 100 percent rating, such as gross impairment in thought processes, persistent delusions and hallucinations, and grossly inappropriate behavior. Even though the Veteran is irritable and has a history of hostility, such as that noted in July 2015 VA treatment records, the Veteran has not demonstrated his symptoms are as severe and persistent as those listed in the criteria. Thus, a 100 percent rating is not warranted.
2. Entitlement to compensable ratings for right and left foot status post exostosis.
The Veteran’s right and left foot status post exostosis are currently each rated pursuant to Code 5015, for new growths of benign bones. However, the Board notes that the Veteran is actually being compensated for residuals of his bilateral foot exostoses, which were removed by surgery during service. See April 2007 rating decision; April 2014 VA examination. Thus, the most appropriate and beneficial Code for these issues is not Code 5015, which is for the current presence of bone growths, but instead Code 5284, for other foot injuries. Thus, the Board will review the evidence and analyze the record pursuant to Code 5284.
Code 5284 provides that a 10 percent rating is assigned for moderate symptoms; a 20 percent rating is assigned for moderately severe symptoms; and a (maximum) 30 percent rating is assigned for severe symptoms. 38 C.F.R. § 4.71a, Code 5284. 
The words “moderate” and “severe” as used in the various Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6.
In consideration of Correia v. McDonald, 28 Vet. App. 158 (2016), and Southall-Norman v. McDonald, 28 Vet. App. 346 (2016) (holding that Correia may still be applicable for Codes not predicated on range of motion measurements), the Board notes that the Veteran has not reported any functional limitation due to his foot disabilities. Thus, there is no reasonable possibility that range of motion measurements for the Veteran’s foot disabilities would result in an increased rating or substantiate the Veteran’s claim. 38 C.F.R. § 3.159(d). As a result, remand for a new examination is not appropriate. 
During an April 2014 VA examination, the Veteran reported stiffness in his feet. He did not report pain, flare-ups or, functional loss or impairment. The examiner opined there was no evidence of pain on physical examination and no functional loss. See April 2014 VA examination.
In VA treatment records, the Veteran reported bilateral foot pain that he has had for many years. He usually reported the pain as a seven or eight out of 10. See, e.g., November 2015 VA treatment records. He reported that it had not gotten worse or better, but at least once stated the pain had gotten worse. See April 2014 VA treatment records.
After resolving reasonable doubt in the Veteran’s favor, the Board finds that his left and right foot exostosis is moderate. The Board finds probative the Veteran’s consistent reports of at least moderate foot pain, having been reported as a seven or eight out of 10. The Veteran’s foot disabilities are not considered moderately severe or severe because there is no evidence of functional impairment or pain that is more than moderate in nature. Accordingly, the Veteran is entitled to a rating of 10 percent, but no higher, for his right and left foot status post exostosis. 
3. Entitlement to a compensable evaluation for bilateral big toe surgery scars.
The Veteran’s bilateral big toe surgery scars are rated pursuant to Code 7805, for other scars (including linear scars). The Board notes that during the course of the appeal, the diagnostic criteria applicable to skin disabilities changed, effective August 13, 2018. See 83 Fed. Reg. 32592. Where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria and, should an increased rating be warranted under revised criteria, that award may not be made effective before the effective date of the change.
Code 7805 itself remained largely unchanged under the new revisions, merely removing the “(including linear scars)” language in the initial description. Pursuant to Code 7805, scars not otherwise rated under Codes 7800-7804 are to be rated based on any disabling effects not provided for by those Codes. 38 C.F.R. § 4.118. 
During an April 2014 VA examination, the examiner reported a healed linear scar on dorsal aspect of right great toe, four cm. long by .1 cm. wide, and a healed linear scar on dorsal aspect of left great toe, five cm. long by .1 cm. wide. Both scars were nontender and not unstable, and both were due to the Veteran’s exostectomy conducted in service. See April 2014 VA examination.
Prior to and after August 13, 2018, Code 7800 was for scars of the head, face, or neck. 38 C.F.R. § 4.118 (2017); 83 Fed. Reg. 32592. Because the Veteran’s scars are on his toes, Code 7800 is not applicable in the current matter.
Under the old criteria, before August 13, 2018, Code 7801 was for burn scars or scars due to other causes not of the head, face, or neck, that are deep and nonlinear. Id. A deep scar is one associated with underlying soft tissue damage. Id. (2017), Note (1). Because the Veteran’s scars were described as linear, Code 7801 prior to August 13, 2018 is not applicable in the current matter. 
Under the new criteria, Code 7801 is for burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. 83 Fed. Reg. 32592. A 10 percent rating is assigned for areas of at least six square inches (sq. in.) (39 sq. cm.) but less than 12 sq. in. (77 sq. cm.). A 20 percent rating is assigned for areas of at least 12 sq. in. (77 sq. cm.) but less than 72 sq. in. (465 sq. cm.). A 30 percent rating is assigned for areas of at least 72 sq. in. (465 sq. cm.) but less than 144 sq. in. (929 sq. cm.). A (maximum) rating of 40 percent is assigned for areas of 144 sq. in. (929 sq. cm.) or greater. Id. (2018). 
Although the Veteran’s scars were never described as not having underlying soft tissue damage, if Code 7801 were applied with the criteria in effect after August 13, 2018, a compensable rating is not warranted, because the Veteran’s scars have a total area of approximately one sq. cm. Accordingly, he is not entitled to a compensable rating pursuant to Code 7801 under the new criteria.
Under the old criteria, Code 7802 is for burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear. 38 C.F.R. § 4.118 (2017). Once again, under the old criteria, Code 7802 is non-applicable because the Veteran’s scars were described as linear. 
After August 13, 2018, Code 7802 is for burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 83 Fed. Reg. 32592. A (maximum) 10 percent rating is assigned for areas of 144 sq. in. (929 sq. cm.) or greater. Id. (2018). The Veteran’s scars together have an area of approximately one sq. cm. Thus, a compensable rating pursuant to this Code is not warranted. 
The rating criteria for Code 7804, for unstable or painful scars, have not changed during the appeal period. See 83 Fed. Reg. 32592. Under this Code, a 10 percent rating is assigned for one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable or painful. A (maximum) 30 percent rating is assigned for five or more scars that are unstable or painful. 38 C.F.R. § 4.118. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Code 7804, Note (1). The April 2014 VA examiner found that the Veteran’s scars were neither painful nor unstable. Thus, the Veteran is not entitled to a compensable rating pursuant to Code 7804.
Because there have been no reported disabling effects due to the Veteran’s scars, and because he does not meet the criteria to be assigned a compensable rating pursuant to Codes 7800-04, a compensable rating is not warranted and the matter is denied.
4. Entitlement to a 10 percent disability rating for multiple noncompensable service-connected disabilities under 38 C.F.R. § 3.324.
Whenever a Veteran is suffering from two or more separate permanent service- connected disabilities of such character as to clearly interfere with normal employability, even though none of the disabilities may be of compensable degree under the Rating Schedule, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. 38 C.F.R. § 3.324.
The provisions of 38 C.F.R. § 3.324 are predicated on the existence solely of non-compensable service-connected disabilities. As such, once a compensable evaluation for any service-connected disability has been awarded, the applicability of 38 C.F.R. § 3.324 is rendered moot. See Butts v. Brown, 5 Vet. App. 532, 541 (1993). In this regard, the Veteran is now being compensated for his service-connected right and left status post exostosis during the entire appeal period. As a result, the issue of compensation under 38 C.F.R. § 3.324 is moot and must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
Effective Date
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. The effective date for the assignment of an increased rating may be up to one year prior to receipt of a formal claim for increase when it is factually ascertainable that an increase in disability had occurred based on all evidence of record. 38 C.F.R. § 3.400(o)(2). A claim is a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2014). The essential elements for any claim, whether formal or informal, are: (1) intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009).
5. Entitlement to an effective date prior to March 19, 2014 for the grant of service connection for unspecified anxiety disorder.
To establish an effective date earlier than March 19, 2014 for the grant of service connection for unspecified anxiety disorder, the Veteran would need to show both (1) that such disability first manifested prior to March 19, 2014 and (2) that he had a prior claim of service connection for a psychological disorder that remained pending, such that an earlier date of claim would be preserved. See 38 C.F.R. § 3.400. There is no evidence the Veteran intended to file a disability compensation claim related to a psychological disorder prior to March 19, 2014. Consequently, regardless of when the Veteran’s unspecified anxiety disorder first manifested, there is simply no basis for awarding an effective date prior to March 19, 2014 for the grant of service connection for unspecified anxiety disorder, and the issue must be denied.
6. Entitlement to an effective date prior to March 28, 2013 for the grant of service connection for bilateral big toe surgery scars.
In April 2007, the AOJ denied service connection for bilateral scarring resulting from surgery. See April 2007 rating decision. The Veteran received notification of that decision the same month, but did not appeal it, nor was new evidence submitted within one year of the decision. Thus, the April 2007 rating decision became final. 
Because the April 2007 rating decision became final, the Veteran is not entitled to an effective date prior to the date he filed a claim to reopen the previously denied claim. However, the Veteran was actually service-connected for this disability as a result of filing a claim for an increased rating for his right and left foot status post exostosis, received by VA on March 28, 2013. See March 2013 informal claim. As a result, the Board finds that the regulation pertaining to increased ratings and whether a disability is factually ascertainably worse applies to the current matter. See 38 C.F.R. § 3.400(o)(2). The April 2014 VA examiner opined that the Veteran’s bilateral big toe surgery scars were the result of surgery on May 5, 1969. See April 2014 VA examination. Thus, based on all evidence of record, it is factually ascertainable that the Veteran’s big toe surgery scars existed one year prior to the receipt of the claim, and an effective date of March 28, 2012 is warranted.
7. Entitlement to an effective date prior to August 23, 2006 for the grants of service connection for right and left foot status post exostosis.
In an April 2007 rating decision, the Veteran was granted service connection for right and left foot status post exostosis, each effective August 23, 2006. He was notified of that decision in correspondence issued that same month. The Veteran did not submit appeal that decision within one year nor was new evidence received within one year of the decision. Thus, the April 2007 rating decision became final.
The United States Court of Appeals for Veterans Claim (Court) has held that a claim for an earlier effective date is a downstream element of a grant of service connection and that adjudication of a free-standing claim for an earlier effective date violated the rule of finality. See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). Thus, in this case, the April 2007 rating decision became final regarding the effective date assigned, absent a finding of clear and unmistakable error (CUE). Id. (holding that a freestanding claim for an earlier effective date is a nullity). 
In light of the finality of the April 2007 rating decision, and in the absence of a claim that the April 2007 rating decision was clearly and unmistakably erroneous, the Veteran cannot obtain an effective date earlier than August 23, 2006 for the grant of service connection for right and left foot status post exostosis. See 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105(a) (2017). No motion alleging CUE has been filed, nor have any of the Veteran’s written statements contained specific allegations of error in fact or law in the April 2007 rating decision, as required for such a motion. 38 C.F.R. § 3.105 (2017); see Fugo v. Brown, 6 Vet. App. 40, 44 (1993) (stating that if a Veteran “wishes to reasonably raise CUE there must be some degree of specificity as to what the alleged error is”).
An untimely NOD deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105(c). Similarly, the proper disposition of a free-standing claim for an earlier effective date claim is dismissal. Rudd, 20 Vet. App. at 300. Because the Board lacks jurisdiction to consider this issue, dismissal is appropriate. The Board is authorized to dismiss any appeal that fails to allege an error of fact or law. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.302. Accordingly, these matters must be dismissed.
8. Entitlement to an effective date prior to March 19, 2014 for the grants of increased ratings for right and left foot status post exostosis.
The Board notes that at the time of the August 2016 SOC, the Veteran had not actually been granted an increased rating for his right and left foot status post exostosis. Nonetheless, because he has now been assigned increased ratings, the Board finds that it may adjudicate the proper effective date of those ratings and dismissal of these issues pursuant to Rudd v. Nicholson, 20 Vet. App. 296 (2006), is not appropriate.
After the April 2007 rating decision became final, VA first received a new claim for an increased rating for the Veteran’s right and left foot status post exostosis on March 28, 2013. While the Veteran’s VA treatment records reflect isolated complaints of foot pain in the one-year period prior to March 28, 2013, see, e.g., October 2012 VA treatment records, it is not factually ascertainable that the Veteran’s symptoms related to his right and left foot status post exostosis worsened because such records do not reflect the severity of the Veteran’s foot pain. Accordingly, because VA first received a claim for an increased rating on March 28, 2013, and it is not factually ascertainable that the Veteran’s disabilities worsened in the year prior to that date, effective dates of March 28, 2013, but no earlier, are warranted.
TDIU
9. Entitlement to TDIU.
TDIU may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In order to meet the schedular criteria for entitlement, the Veteran must have either: (i) one disability rated at 60 percent or more; or (ii) two or more disabilities, with at least one disability rated at 40 percent or more and sufficient additional disability bringing the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a).
Prior to March 19, 2014, the Veteran does not meet the schedular criteria to be entitled to TDIU. During this time, he is service connected for his right and left status post exostosis, each rated at 10 percent disabling, and bilateral big toe surgery scars, rated as noncompensable. Thus, his combined rating is 30 percent. As previously discussed, the Veteran has reported no functional limitation due to his disabilities of the feet, nor is there evidence that his foot pain and stiffness caused such occupational impairment as to prevent him from securing and following substantially gainful employment, such as an inability to stand or sit for long periods of time. See, e.g., April 2014 VA examination; April 2014 VA treatment records. Thus, remand of this issue for extraschedular consideration is not appropriate, and entitlement to TDIU is denied prior to March 19, 2014.
As a result of the Board’s decision to increase the Veteran’s rating for his unspecific anxiety disorder to 70 percent, he meets the schedular criteria to be entitled to TDIU as of March 19, 2014. Dr. H.G. opined that the Veteran would have to miss three or more days of work per month or would need to leave early from the workplace due to his mental health problems. She also stated that the Veteran would not stay focused for at least seven hours of an eight-hour workday more than three days per month. She noted that research indicates that some psychiatric diagnoses, including anxiety, lead to occupational dysfunction and poor work-related quality of life. See November 2015 private evaluation. 
The record corroborates Dr. H.G.’s opinion, as treatment records reflect consistent agitation, irritation, or hostility. See, e.g., December 2015 VA treatment records (wherein the physician assessed a history of anger, irritable, and strained interpersonal inactive style that had worsened). Although the August 2014 VA examiner found that the Veteran’s symptoms would only affect him during periods of significant stress, after resolving reasonable doubt in the Veteran’s favor, the Board finds that his unspecific anxiety disorder prevents him from securing and following substantially gainful employment from March 19, 2014. 
Therefore, a TDIU is warranted as of March 19, 2014.
 
E. I. VELEZ
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Sandler, Associate Counsel