Citation Nr: 1808165 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 17-58 625 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES 1. Entitlement to an increased disability rating (or evaluation) for depressive disorder, in excess of 10 percent prior to June 2, 2014, and in excess of 30 percent from June 2, 2014. 2. Entitlement to an increased disability rating (or evaluation) in excess of 30 percent for scarring of the chin and left mandibular. 3. Whether new and material evidence has been received to reopen service connection for a burn scar of the right leg. 4. Whether new and material evidence has been received to reopen service connection for lumbar spine disorder. 5. Entitlement to service connection for a lumbar spine disorder. 6. Entitlement to service connection for headaches. 7. Entitlement to service connection for sleep apnea. 8. Entitlement to service connection for a prostate disorder. 9. Entitlement to service connection for a left leg disorder. 10. Entitlement to service connection for a bilateral hip disorder. 11. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD E. Blowers, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from August 1952 to December 1956. This matter came before the Board of Veterans' Appeals (Board) on appeal from March 2015 and June 2015 rating decisions of the RO in Cleveland, Ohio. The instant matter is a Veterans Benefits Management System (VBMS) appeal. The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence. In the March 2015 notice of disagreement (NOD), the Veteran asserted not only disagreeing with the ratings assigned for the depressive disorder and the scars of the chin and left mandibular, but also disagreeing with the "effective date." The Board finds that, notwithstanding the use of the term "effective date" in the context of requesting increased rating for these service-connected disabilities, the Veteran has not raised an additional issue of actual earlier effective dates. As to the scar rating, in the March 2015 rating decision, the RO denied an increased disability rating. As there was no increase in rating, there is no new rating to which an earlier effective date could be assigned. The RO did increase the disability rating of the service-connected depressive disorder from 10 to 30 percent disabling effective June 2, 2014, the date of claim for increase. As discussed below, the Veteran may be entitled to a 30 percent, or higher, disability rating during the one-year period prior to the date of claim; however, such a rating question is part of the increased rating issue that is on appeal. Because an increased rating appeal had already been perfected in November 2017 for the one-year period prior to the date of claim (prior to assignment of the 30 percent stage of the increased disability rating), the Veteran's characterization of the issue in March 2015 as one for earlier effective date did not constitute an actual effective date appeal. Although the Veteran used the term "effective date" to express disagreement with the date of assignment of the 30 percent "stage" of the disability rating appeal, the characterization of the appeal as one of effective date does not convert it into an actual effective date appeal. Furthermore, because all the questions to be decided by the perfected increased disability rating appeal - namely, a weighing of the lay and medical evidence to determine whether an increased disability rating for depressive disorder, in excess of 10 percent prior to June 2, 2014, and in excess of 30 percent from June 2, 2014, is warranted - there remains no question of effective date for rating that is not fully adjudicated in the increased disability rating adjudication of the 10 percent rating stage. For these reasons, it was not legally possible for the Veteran to appeal an "effective date" for the 30 percent rating. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2017). The issues of service connection for sleep apnea, a prostate disorder, a left leg disorder, and a bilateral hip disorder, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. From June 2, 2014, the date of claim, the severity, frequency, and duration of the symptoms of the service-connected depressive disorder more nearly approximated occupational and social impairment with deficiencies in most areas. 2. For the entire increased rating period on appeal, the Veteran's service-connected scarring of the chin and left mandibular was not deep, painful, or unstable, did not manifest as visible or palpable tissue loss and either gross distortion or asymmetry of at least two features or paired sets of features, or as four or more characteristics of disfigurement, did not cover an area or areas of 144 square (sq.) inches (in.) or greater, and did not result in any additional disabling effects. 3. A June 1957 rating decision denied service connection for the Veteran's preexisting burn scar of the right leg, finding that the preexisting burn scar was not aggravated by a December 1954 in-service motor vehicle accident. The Veteran did not file a timely notice of disagreement (NOD) following the June 1957 rating decision, and no new and material evidence was received during the one year appeal period. 4. The evidence associated with the claims file subsequent to the June 1957 rating decision does not relate to an unestablished fact that is necessary to substantiate the claim for service connection for a burn scar of the right leg, or is cumulative and redundant of evidence previously of record. 5. A March 2013 rating decision denied service connection for a lumbar spine disorder, finding no nexus to service. The Veteran did not file a timely NOD following the March 2013 rating decision, and no new and material evidence was received during the one year appeal period. 6. New evidence received since the March 2013 rating decision relates to an unestablished fact of continuous back pain treatment since service separation that is necessary to substantiate the claim for service connection for a lumbar spine disorder. 7. The Veteran is currently diagnosed with arthritis of the lumbar spine. 8. During service the Veteran was in a motor vehicle accident. 9. The Veteran experienced "continuous" symptoms of arthritis of the lumbar spine since service separation. 10. The Veteran is currently diagnosed with tension headaches. 11. The tension headaches are caused by the service-connected depressive disorder. 12. For the entire rating period on appeal from June 2, 2014, the Veteran was unable to obtain or maintain substantially gainful employment as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, from June 2, 2014, the date of claim, the criteria for a disability rating of 70 percent, but no higher, for the service-connected depressive disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.130, Diagnostic Code 9434 (2017). 2. For the entire rating period on appeal, the criteria for an increased disability rating for scarring of the chin and left mandibular in excess of 30 percent have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.118, Diagnostic Codes 7800-7805. 3. The June 1957 rating decision denying service connection for a burn scar of the right leg became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 4. Evidence received since the June 1957 rating decision is not new and material to reopen service connection for a burn scar of the right leg. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The March 2013 rating decision denying service connection for a lumbar spine disorder became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 6. Evidence received since the March 2013 rating decision is new and material to reopen service connection for a lumbar spine disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 7. Resolving reasonable doubt in the Veteran's favor, the criteria for presumptive service connection for arthritis of the lumbar spine have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1133, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2017). 8. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tension headaches, as secondary to the service-connected depressive disorder, have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.326 (2017). 9. Resolving all reasonable doubt in the Veteran's favor, the criteria for a TDIU have been met from June 2, 2014. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. As the instant decision grants service connection for headaches, reopens and grants service connection for a lumbar spine disorder, grants a TDIU, and remands the issues of service connection for sleep apnea, a prostate disorder, a left leg disorder, and a bilateral hip disorder, no further discussion of VA's duties to notify and assist is necessary as to those issues. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In addition, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that, in the context of an application for reopening, VCAA notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. Id. at 11-12. The Court elaborated that VA is required, in response to an application to reopen, to look at the bases for the denial in the prior decision and send a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Id. In June 2014, VA issued the Veteran VCAA notice that informed of the evidence generally needed to support a claim for an increased disability rating, what actions the Veteran needed to undertake, and how VA would assist in developing the claim. The June 2014 VCAA notice also provided the information required under Kent concerning the new and material evidence issues on appeal. The June 2014 VCAA notice was issued to the Veteran prior to the March 2015 rating decision on appeal. Further, the issues on appeal were readjudicated in a September 2017 statement of the case (SOC); therefore, there was no defect with respect to the timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the duty to assist in this case, concerning the new and material evidence issues, the Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. The Veteran has not otherwise identified any evidence that remains outstanding and that may be available to VA. As to the rating issues on appeal, the Veteran received VA mental health and scarring examinations in June 2014. The examination reports are of record. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The record reflects that the VA examiners reviewed the record, conducted in-person examinations, and rendered the requested opinions. Further, VA has also received an adequate October 2017 mental health disability benefits questionnaire (DBQ) completed by a private psychologist. All relevant documentation, including VA and private treatment (medical) records, has been secured, or attempted to be secured, and all relevant facts have been developed. There remains no question as to the substantial completeness of the remaining issues on appeal. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). Any duties imposed on VA, including the duties to assist and to provide notification, have been met as set forth above. Disability Rating Law and Regulation 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 (2017). 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. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2017). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14 (2017). It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. Where an increase in an existing disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. The Board has thoroughly reviewed all the evidence in the Veteran's claims file and adequately addresses the relevant evidence in the instant decision. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Increased Disability Rating for Depressive Disorder Under Diagnostic Code 9434, a 10 percent rating will be assigned for a mental disability which is productive of 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. A 30 percent rating will be assigned for a mental disability which is productive of 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). A 50 percent rating will be assigned for a mental disability which is productive of occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring 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 or 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. A 70 percent rating will be assigned for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. A 100 percent rating will be assigned for total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an 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. 38 C.F.R. § 4.130. The Secretary of VA, acting within the authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501 (2012); 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 psychiatric disorders, there can be no doubt that the Secretary of VA anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive. The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of 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 the claimant's social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997). See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. The schedular rating criteria rate by analogy psychiatric symptoms that are "like or similar to" those explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. The Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the 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." See also Bankhead v. Shulkin, No. 15-2404 (Vet. App., Mar. 27, 2017) (indicating that the Board should consider the severity, frequency, and duration of the signs and symptoms of a mental disorder when determining the appropriate rating). Having reviewed all the evidence of record, both lay and medical, the Board finds that, from June 2, 2014, the date of claim, the severity, frequency, and duration of the symptoms of the service-connected depressive disorder more nearly approximated occupational and social impairment with deficiencies in most areas. The Veteran received a VA mental health examination in June 2014. Per the examination report, the Veteran had symptoms of depressed mood, anxiety, and disturbances of motivation and mood. Per a May 2017 statement from the Veteran's wife, the Veteran's depression was worsening. Further, the Veteran's short-term memory had also worsened. Additional symptoms of the depression included poor judgment (like or similar to impaired judgement), lack of motivation (like or similar to disturbances of motivation and mood), irritability (like or similar to disturbances of motivation and mood), an inability to handle stressful situations, and lack of concentration (like or similar to difficulty understanding complex commands). The wife advanced having to take care of all responsibilities at home, including cooking, cleaning, budgeting, paying bills, and taking medications. VA also received a May 2017 statement from the Veteran's son. In the statement the son reiterated many of the symptoms addressed above by the Veteran's wife; however, the son also described an incident in which the Veteran wanted to place the grandchildren in the trunk of a car while driving so that "it could get more traction." Such an action shows a significant deficiency in judgement on the part of the Veteran. Additionally, the Veteran has shown no desire to have friends (like or similar to an inability to establish and maintain effective relationships). A private mental health examination was performed in October 2017. The examination was thorough, consisting of an interview, review of the evidence of record and prior testing, and consideration of the medical literature. The Board finds this examination to be more thorough and to better reflect the Veteran's symptoms throughout the course of this appeal than the June 2014 VA mental health examination, particularly when considering the statements from the Veteran's wife and son. Upon examination, the Veteran had symptoms of depressed mood, anxiety, suspiciousness, panic attacks, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, intermittently illogical, obscure, or irrelevant speech, difficulty understanding complex commands, impaired abstract thinking, gross impairment in thought process or communication, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, an inability to establish and maintain effective relationships, obsessional rituals which interfere with routine activities, impaired impulse control, intermittent inability to perform activities of daily living, and disorientation to time or place. Per the examination report, the private psychologist opined that the Veteran's mental health symptoms showed occupational and social impairment with deficiencies in most areas. After a review of all the evidence, lay and medical, the Board finds that, from June 2, 2014, the date of claim, the severity, frequency, and duration of the symptoms of the service-connected depressive disorder more nearly approximated occupational and social impairment with deficiencies in most areas, as required for an increased disability rating of 70 percent under Diagnostic Code 9434. While the Veteran has shown a number of symptoms in the 50 and 70 percent criteria, and even a few symptoms in the 100 percent criteria, the Board has given significant weight to the opinion of the private examiner, found in the October 2017 DBQ, that the Veteran's mental health symptoms showed occupational and social impairment with deficiencies in most areas. The Board finds this opinion to be supported by the other evidence of record, which shows the severity, frequency, and duration of the symptoms to be more in line with the criteria contemplated by a 70 percent disability rating. For these reasons, resolving all reasonable doubt in favor of the Veteran, the Board finds that the lay and medical evidence shows that a disability rating of 70 percent is warranted for the service-connected depressive disorder from June 2, 2014, the date of claim. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9439. The Board acknowledges that the Veteran's depressive disorder symptoms have resulted in significant social and occupational impairment, hence, is assigning a 70 percent disability rating in the instant decision that recognizes serious symptoms and serious occupational and social impairment that affects various aspects of the Veteran's life; however, the evidence of record does not reflect that during the relevant period on appeal the symptoms were so severe as to cause total occupational and social impairment to warrant a 100 percent total schedular disability rating. 38 C.F.R. §§ 4.3, 4.7. While the private examiner in October 2017 did find intermittent inability to perform activities of daily living and disorientation to time or place, the private examiner did not find these symptoms to be of sufficient severity, frequency, and duration to result in total occupational and social impairment. Further, despite some familial strife, the Veteran has maintained a relationship with the wife and son. As such, the Board finds that a 100 disability rating is not warranted at any point during the relevant period on appeal. The Board has also considered whether an increased disability rating was warranted at any point during the one year period prior to June 2, 2014, the date of claim for increase. See Hart, 21 Vet. App. 505. The evidence of record does not convey that the Veteran first became entitled to an increased disability rating during the one year period from June 2, 2013 to June 2, 2014 (one year prior to date of receipt of claim for increase). For this reason, the appropriate effective date for the increased disability rating of 70 percent is June 2, 2014, the date of receipt of increased rating claim. See 38 C.F.R. § 3.400(o) (2017); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (explaining the legislative history of 38 U.S.C. § 5110(b)(2) was to provide veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability). Increased Disability Rating for Scarring of the Chin and Left Mandibular Under Diagnostic Code 7800, for disfigurement of the head, face, or neck, a 10 percent disability rating is warranted for scarring with one characteristic of disfigurement. A 30 percent disability rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or two or three of the characteristics of disfigurement. A 50 percent disability rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or four or five characteristics of disfigurement. An 80 percent disability rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or six or more characteristics of disfigurement. 38 C.F.R. § 4.118. The eight characteristics of disfigurement for the purposes of rating under 38 C.F.R. § 4.118 are: scar of 5 in. or more (13 or more centimeters (cm.)) in length; scar at least 1/4 in. (0.6 cm.) wide at its widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding 6 sq. in. (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 sq. in. (39 sq. cm.); underlying soft tissue missing in an area exceeding 6 sq. in. (39 sq. cm.); and skin indurated and inflexible in an area exceeding 6 sq. in. (39 sq. cm.). Id., Note (1). Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. centimeters (cm.)) but less than 12 square inches (77 sq. cm.) will be assigned a 10 percent rating. A scar in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) will be assigned a 20 percent rating. A scar in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) will be assigned a 30 percent rating. A scar in an area or areas of at least 144 square inches (929 sq. cm.) or greater will be assigned a 40 percent rating. Note (1) indicates that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801. Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater will be assigned a 10 percent rating. Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802. One or two scars that are unstable or painful will be assigned a 10 percent rating. Three or four scars that are unstable or painful will be assigned a 20 percent rating. Five or more scars that are unstable or painful will be assigned a 30 percent rating. Note (1) indicates that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the rating that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804. Any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800 through 7804 are to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. Having reviewed all the evidence of record, both lay and medical, the Board finds that, for the entire increased rating period on appeal, the Veteran's service-connected scarring of the chin and left mandibular was not deep, painful, or unstable, did not manifest as visible or palpable tissue loss and either gross distortion or asymmetry of at least two features or paired sets of features, or as four or more characteristics of disfigurement, did not cover an area or areas of 144 sq. in. or greater, and did not result in any additional disabling effects. The Board notes that during the course of this appeal the Veteran has not explained how the scarring of the chin and left mandibular has worsened. Further, VA treatment records do not reflect that the Veteran has received any recent treatment for the facial scarring. In fact, a February 2015 VA treatment record specifically noted that the scars were "well healed." A VA scar examination was performed in June 2014. Per the examination report, the facial scarring was not painful, unstable, or deep. There was also no gross distortion or asymmetry of facial features or visible or palpable tissue loss. The scarring of the chin measured two by seven cm. and the scarring of the mandibular chin measured two by two cm. Further, the VA examiner found that the scarring did not result in disfigurement of the head, face, or neck, and did cause any additional disabling effects. The Veteran's facial scarring is currently rated under Diagnostic Code 7800 for scaring of the head, face, or neck. As the evidence of record does not reflect that the scarring manifested as visible or palpable tissue loss and either gross distortion or asymmetry of at least two features or paired sets of features, or as four or more characteristics of disfigurement, an increased disability rating in excess of 30 percent is not warranted under this diagnostic code. 38 C.F.R. § 4.118. The Board has considered whether an increased (or separate compensable) disability rating may be awarded under any other diagnostic code. As the evidence reflects that the scars were not deep, painful, or unstable, an increased disability rating cannot be assigned under Diagnostic Codes 7801 or 7804. Id. Additionally, as the scarring did not cover an area of 144 sq. in. or more, a separate compensable rating may not be assigned under Diagnostic Code 7802. Id. Finally, as the scars do not result in any additional disabling effects, neither an increased nor a separate compensable disability rating may be awarded under Diagnostic Code 7805. Id. For these reasons, the Board finds that, for the entire increased rating period on appeal, the criteria for an increased disability rating in excess of 30 percent for scarring of the chin and left mandibular have not been met. As the preponderance of the evidence is against the claim for an increased rating, the claim for an increased rating must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Codes 7800-7805. Extraschedular Referral Consideration The Board has also considered whether referral for an extraschedular rating is warranted for the service-connected depressive disorder and/or facial scarring. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). However, the Board gives no deference to the Director's adjudication and the Board is permitted to exercise jurisdiction over the question of entitlement to an extraschedular rating whether or not the Director of the Compensation and Pension Service finds an extraschedular rating warranted. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (applying principles announced in Wages to 38 C.F.R. § 3.321(b) extraschedular adjudication, namely, Director of C&P decision is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board); Cf. Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of C&P is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). With respect to the first prong of Thun, as to the depressive disorder, the evidence in this instant appeal does not establish such an exceptional disability picture as to render the schedular rating inadequate. A comparison between the level of severity and symptomatology of the Veteran's depressive disorder with the established criteria found in 38 C.F.R. § 4.130, Diagnostic Code 9434, reflects that the diagnostic criteria reasonably describe the Veteran's disability level and symptomatology and degree of occupational and social impairment. The diagnostic criteria convey that compensable ratings will be assigned for depressive disorder which manifests by various levels of occupational and social impairment. The Veteran's disability picture has been shown to encompass occupational and social impairment based on symptoms including depressed mood, anxiety, suspiciousness, panic attacks, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, intermittently illogical, obscure, or irrelevant speech, difficulty understanding complex commands, impaired abstract thinking, gross impairment in thought process or communication, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, an inability to establish and maintain effective relationships, obsessional rituals which interfere with routine activities, impaired impulse control, intermittent inability to perform activities of daily living, and disorientation to time or place, among other symptoms discussed above. All the impairment and symptoms are either explicitly part of the schedular rating criteria or are "like or similar to" examples or symptoms in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. For these reasons, the Veteran's service-connected depressive disorder has not been shown to be productive of an exceptional disability picture; therefore, the Board determines that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. Concerning the facial scarring, with respect to the first prong of Thun, the evidence in the instant appeal does not establish such an exceptional disability picture as to render the schedular rating criteria inadequate. Diagnostic Codes 7800 through 7804 rate scar disabilities on the basis of appearance, location, size, soft tissue damage, pain, depth, and loss of covering of the skin (both subjective and objective findings). As discussed above, the current symptomatology is contemplated by Diagnostic Codes 7800 through 7804. Further, Diagnostic Code 7805 specifically provides for the rating of all other disabling effects not provided for in Codes 7800 through 7804. While no such disabling effects were present in the instant appeal, effectively, all additional potentially relevant symptoms are addressed in this diagnostic code. As the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate under Diagnostic Codes 7800 through 7805. 38 C.F.R. § 4.118. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2017). In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above. In the absence of exceptional factors associated with the Veteran's mental health and/or facial scarring, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The issue of entitlement to a TDIU is addressed below. New and Material Evidence Law and Regulation Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Regardless of the RO's determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. Reopening Service Connection for a Burn Scar of the Right Leg A June 1957 rating decision denied service connection for the Veteran's preexisting burn scar of the right leg, finding that the preexisting burn scar was not aggravated by a December 1954 in-service motor vehicle accident. The Veteran did not file a timely NOD following the June 1957 rating decision, and no new and material evidence was received during the one year appeal period following that decision. As such, the June 1957 rating decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304 (2017). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2017); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. §§ 3.304, 3.306. In explaining the meaning of an increase in disability, the Court has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Of note is that the burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 C.F.R. § 3.306. Relevant to the instant matter, service treatment records reflect that during the Veteran's August 1952 service entrance examination, a preexisting burn scar of the right leg was specifically noted. The same scar was also noted during the service separation examination in December 1956. Further, the service treatment records reflect that the Veteran was involved in an in-service jeep accident in December 1954. Upon separating from service, in January 1957, the Veteran, in pertinent part, filed a claim for service connection for a right leg disorder related to the December 1954 motor vehicle accident. The RO took this claim to include a request for service-connection for the preexisting burn scar of the right leg. Subsequently, in a June 1957 rating decision, the RO found that the preexisting burn scar of the right leg was not aggravated by the December 1954 motor vehicle accident, and service connection was denied. As discussed above, this decision became final. Since the June 1957 rating decision, VA has received no new and material evidence indicating that that the preexisting burn scar of the right leg was aggravated during service, to include as due to the motor vehicle accident. VA treatment records do not reflect that the Veteran has received any treatment for symptoms related to the burn scar of the right leg that have been attributed to service. Additionally, VA has not received any private treatment records showing treatment for symptoms related to the burn scar of the right leg that have been attributed to service. Further, during this appeal the Veteran has not made any statements to the effect that the burn scars of the right leg were aggravated during service, and, even considering the low evidentiary standard of Shade, no evidence has been received by VA that could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. For the reasons discussed above, the evidence associated with the claims file subsequent to the June 1957 rating decision does not relate to an unestablished fact that is necessary to substantiate the claim for service connection for a burn scar of the right leg, or is cumulative and redundant of evidence previously of record. As VA has not received both new and material evidence reflecting that the Veteran's burn scar of the right leg may have been aggravated by active service, including as due to the December 1954 motor vehicle accident, the issue may not be reopened. Under these circumstances, the Board finds that new and material evidence to reopen entitlement to service connection for a burn scar of the right leg has not been received. As such, the RO's June 1957 rating decision remains final, and the appeal to reopen must be denied. As the evidence has not fulfilled the threshold burden of being new and material evidence to reopen the finally disallowed issue, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Reopening Service Connection for a Lumbar Spine Disorder A March 2013 rating decision denied service connection for a lumbar spine disorder, finding no nexus to service. The Veteran did not file a timely NOD following the March 2013 rating decision, and no new and material evidence was received during the one year appeal period following that decision. As such, the June March 2013 decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. Arthritis is a chronic disease under 38 C.F.R. § 3.309(a). As such, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable to the issue on appeal. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown 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. 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. 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). Since the March 2013 rating decision denying service connection for a lumbar spine disorder, VA received multiple VA treatment records. Such records reflect that the Veteran has received continuous treatment for the lumbar spine arthritis. Such evidence relates to an unestablished fact of possible continuous symptoms of arthritis since service separation necessary to substantiate a claim for service connection for a lumbar spine disorder. For this reason, the Board finds that the additional evidence is new and material to reopen service connection for a lumbar spine disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Law and Regulation Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden, 381 F.3d 1163; see also Hickson, 12 Vet. App. at 253, citing Caluza, 7 Vet. App. at 506. Arthritis is a chronic disease under 38 C.F.R. § 3.309(a). As such, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable to the issue on appeal. Walker, 708 F.3d 1331. Tension headaches are not a chronic disease under 38 C.F.R. § 3.309(a), and the presumptive service connection provisions under 38 C.F.R. § 3.303(b) do not apply. Id. Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown 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. 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. 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). Service connection may be granted for disability that is proximately due to or the result of a service-connected disability. Service connection may also be granted for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for a Lumbar Spine Disorder The Veteran asserts that a currently diagnosed lumbar spine disorder is related to an in-service motor vehicle accident. It has been the Veteran's contention that the back pain has continued from service separation to the present. Initially, the Board finds that the Veteran is currently diagnosed with arthritis of the lumbar spine. The report from a March 2013 VA back examination reflects that X-ray imaging showed arthritis in the lumbar spine. Next, the Board finds that during service the Veteran was involved in a motor vehicle accident. Specifically, a December 1954 service treatment record reports that the Veteran was involved in a "jeep wreck." Finally, having reviewed all the evidence of record, lay and medical, the Board finds that the weight of the evidence is at least in equipoise on the question of whether the Veteran experienced "continuous" symptoms since service separation of arthritis of the lumbar spine to meet the requirements for presumptive service connection for the chronic disease of arthritis. See 38 C.F.R. § 3.303(b). The Veteran's December 1956 service separation examination conveys that no back disorder was diagnosed at service separation; however, the evidence also reflects that in January 1957, approximately one month post-service separation, the Veteran requested service connection for a back disorder. Specifically, in the claim form, the Veteran advanced injuring the spine in the December 1954 motor vehicle accident. While the claim was subsequently considered abandoned for reasons not relevant to the instant matter, such evidence shows that the Veteran was having back (spinal) symptoms near the time of service separation. Per the report from the March 2013 VA spinal examination, the Veteran advanced having persistent low back pain since the in-service motor vehicle accident. Further, the Veteran conveyed receiving regular treatment for the back pain by a VA medical center (VAMC) following discharge from service. Available VA treatment records support the Veteran's contention of regular back treatment. At the conclusion of the examination, the VA examiner opined that it was less likely than not that the currently diagnosed lumbar spine disorder was related to service. This opinion appears to be based, at least in part, on the absence of available medical records detailing back treatment prior to April 2007. The VA examiner does not appear to have considered the Veteran's contention of symptoms of low back pain since service separation. As such, the Board finds the negative nexus opinion to be inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). The Veteran is currently diagnosed with arthritis of the lumbar spine. During service the Veteran was involved in a motor vehicle accident. Throughout the course of this appeal the Veteran has advanced having back disability symptoms since the in-service motor vehicle accident, and the available medical evidence of record supports the Veteran's lay statements. This evidence is sufficient to place in equipoise the question of whether the Veteran experienced continuity of symptomatology of a lumbar spine disorder since service separation that was later diagnosed as arthritis of the lumbar spine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (a veteran is competent to testify regarding continuous joint pain since service). Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran injured the back in a motor vehicle accident during service and experienced "continuous" symptoms since service separation of arthritis of the lumbar spine. As such, the criteria for presumptive service connection for arthritis of the lumbar spine under 38 C.F.R. § 3.303(b) based on "continuous" post-service symptoms have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As service connection is being granted on a presumptive basis based on continuous post-service symptoms under 38 C.F.R. § 3.303(b), there is no need to discuss entitlement to service connection on a direct or any other basis as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104 (2012). Finally, the Board notes that the evidence of record indicates that the Veteran may be diagnosed with other lumbar spine disorders, including lumbar compression fracture. Where a veteran is diagnosed with multiple back (spinal) disorders, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App.181, 182 (1998) (per curiam). In this case, the Board is unable to differentiate the symptomatology of the now service-connected arthritis of the lumbar spine from any other back disorders. As such, the Board has attributed all disability symptomatology and functional impairment to the now service-connected arthritis of the lumbar spine, and the RO should consider all of the Veteran's lumbar spine symptomatology and functional impairment when assigning an initial disability rating. For these reasons, the Board need not consider whether service connection is also warranted for any other lumbar spine disorders. Service Connection for Headaches The Veteran has advanced having headaches that are either related to service or are caused by the service-connected depressive disorder. The report from a November 2017 private headache DBQ reflects that the Veteran is currently diagnosed with tension headaches. 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 the currently diagnosed tension headaches are caused by the service-connected depressive disorder. Per the November 2017 private headache DBQ, after a review of the evidence and the medical literature, the private examiner opined that the service-connected depressive disorder more likely than not caused the tension headaches. The Veteran is currently diagnosed with tension headaches, and a private physician has opined that the tension headaches are caused by the service-connected depressive disorder. No opinion or other evidence to the contrary has been received. As such, resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for tension headaches as secondary to the service-connected depressive disorder have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As service connection has been granted on a secondary basis, there is no need to discuss entitlement to service connection on a direct or any other basis, as all other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. Entitlement to a TDIU Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a),(b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a) (2017). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). In the instant decision, the Board grants an increased disability rating of 70 percent for the service-connected depressive disorder. As such, the combined schedular disability rating eligibility criteria for a TDIU under 38 C.F.R. § 4.16(a) have been met for the period from June 2, 2014. From June 2, 2014, the Veteran had a combined schedular disability rating of 70 percent or higher, to include the following service-connected disabilities: depressive disorder (70 percent disabling) and scarring of the chin and left mandibular (30 percent disabling). Further, from June 2, 2014, the Veteran had at least one disability rated at 40 percent or higher (depressive disorder). See 38 C.F.R. § 4.16(a). After reviewing all the evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's service-connected disabilities prevented obtaining or maintaining substantially gainful employment since June 2, 2014. Initially, the Board finds that the Veteran was not substantially gainfully employed for many years prior to June 2, 2014. The evidence of record, including the report from the October 2017 private mental health DBQ and the Veteran's VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, reflects that the Veteran last worked substantially gainful employment sometime between 1992 and 1995. As part of the October 2017 mental health DBQ, the private psychiatrist also completed an employability review. Upon completing the review, the private psychiatrist opined that the service-connected depressive disorder would prevent uninterrupted substantially gainful employment. Specifically, the private psychiatrist found that the mental health symptoms would result in lack of motivation, poor concentration, an inability to handle the stress of work, poor job performance, an inability to meet deadlines, inappropriate office conduct, and possible verbal and physical altercations with coworkers. Resolving reasonable doubt in the Veteran's favor, the Board finds that the service-connected disabilities, namely, the symptoms stemming from the depressive disorder, prevent the Veteran from obtaining or maintaining substantially gainful employment. In October 2017, a private psychiatrist reviewed all of the Veteran's mental health symptomatology and found that the symptoms would prevent uninterrupted substantially gainful employment. For these reasons, resolving all reasonable doubt in favor of the Veteran, the Board finds that a TDIU is warranted from June 2, 2014. 38 C.F.R. §§ 3.340, 3.341, 4.16. As the evidence reflects that the Veteran has been unemployed for approximately 20 years, June 2, 2014 is the earliest date upon which TDIU can be granted in the instant decision. See 38 C.F.R. § 3.400(o). ORDER For the rating period from June 2, 2014, an increased disability rating of 70 percent for the service-connected depressive disorder, but no higher, is granted. An increased disability rating in excess of 30 percent for the service-connected scarring of the chin and left mandibular is denied. The appeal to reopen service connection for a burn scar of the right leg is denied. New and material evidence having been received, the appeal to reopen service connection for a lumbar spine disorder is granted. Service connection for arthritis of the lumbar spine is granted. Service connection for tension headaches, as secondary to the service-connected depressive disorder, is granted. A TDIU from June 2, 2014 is granted. REMAND VA Examination Law and Regulation VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) 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, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Sleep Apnea The Veteran has not received a VA examination regarding the claimed sleep apnea. Per the report from the October 2017 private mental health DBQ, the Veteran has chronic sleep impairment related to the service-connected depressive disorder; however, it is unclear from this examination, or the other evidence of record, whether the Veteran has a separately diagnosable sleep disorder of sleep apnea, as it does not appear that the Veteran has ever received a sleep study. As such, the Board finds remand warranted to schedule the Veteran for a VA sleep examination. Prostate Disorder VA treatment records convey that the Veteran was previously diagnosed with, and treated for, prostate cancer. It is unclear from the record what, if any, residuals the Veteran has from this prior treatment, and whether the prostate cancer and any residuals are related to service. As such, the Board finds remand warranted to schedule the Veteran for a VA prostate disorder examination. Orthopedic Disorders An orthopedic examination has not been performed in the instant matter. During the course of this appeal, the Veteran has advanced having left leg and bilateral hip disorders related to the December 1954 in-service motor vehicle accident. Per an April 2014 VA treatment record, the Veteran has been diagnosed with arthritis of the right hip. It is unclear to the Board whether the Veteran also has arthritis, or any other disorder, in the left hip and/or left leg; therefore, the Board finds remand to schedule a VA orthopedic examination to be warranted. Outstanding Treatment Records VA should obtain all relevant VA and private clinical documentation that could potentially be helpful in resolving the issues. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand the AOJ should request that the Veteran provide any relevant outstanding private treatment records not already associated with the record. Further, the AOJ should obtain any outstanding VA treatment records for the period from August 2017. Accordingly, the issues of service connection for sleep apnea, a prostate disorder, a left leg disorder, and a bilateral hip disorder are REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning sleep, prostate, left leg, and right and left hip disorders. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disorders, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the aforementioned disorders, not already of record, for the period from August 2017. 3. Schedule the appropriate VA examinations. The relevant documents in the record should be made available to the examiners, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiners should provide the following opinions: Sleep Apnea A) Does the Veteran have a separately diagnosable sleep disorder of sleep apnea? B) If the Veteran does have a separately diagnosable sleep disorder of sleep apnea, is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed sleep apnea had its onset during a period of active service? Prostate Disorder Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's previously treated prostate cancer, and any residuals thereof, had its onset during a period of active service? Left Leg Disorder A) Does the Veteran have a currently diagnosed left leg disorder? B) If the Veteran does have a currently diagnosed left leg disorder, is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed left leg disorder had its onset during a period of active service, including as due to the December 1954 in-service motor vehicle accident? Bilateral Hip Disorder A) Does the Veteran have a currently diagnosed bilateral hip disorder in addition to the previously diagnosed right hip arthritis? B) Is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed right hip arthritis, and/or any other currently diagnosed bilateral hip disorder, had its onset during a period of active service, including as due to the December 1954 in-service motor vehicle accident? 4. Then, readjudicate the issues of service connection for sleep apnea, a prostate disorder, a left leg disorder, and a bilateral hip disorder. If any benefit sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs