Citation Nr: 19128981
Decision Date: 04/16/19	Archive Date: 04/15/19

DOCKET NO. 17-13 267
DATE:	April 16, 2019

ORDER

As new and material evidence has not been received, the claim of entitlement to service connection for glaucoma suspect and preoperative cataracts in both eyes is not reopened.

Entitlement to service connection for sleep apnea is granted.

Entitlement to service connection for hypertension is denied.

Entitlement to service connection for a back condition is denied.

Entitlement to peripheral neuropathy of the bilateral upper extremities, associated with diabetes mellitus, type II, is denied.

Entitlement to service connection for right ear hearing loss is denied.

Entitlement to an effective date prior to August 7, 2014, for the assignment of a 10 percent disability rating for the scar of the right temporal wound is denied.

Entitlement to an effective date prior to February 10, 2015, for the grant of service connection of hearing loss of the left ear is denied.

Entitlement to an effective date prior to February 10, 2015, for the grant of service connection of tinnitus is denied.

Entitlement to an effective date prior to March 30, 2012, for the grant of service connection of the scars on the radial and volar aspect of the proximal right forearm is denied.

Entitlement to an effective date prior to March 30, 2012, for the grant of service connection of posttraumatic stress disorder (PTSD) is denied.

Entitlement to an initial compensable rating for hearing loss of the left ear is denied.

Entitlement to an initial increased disability rating in excess of 10 percent for tinnitus is denied.

Entitlement to an increased disability rating in excess of 10 percent for a scar of the right temporal wound is denied.

Entitlement to a compensable disability rating of a scar of the radial and volar aspect of the proximal right forearm is denied.

Entitlement to an increased disability rating in excess of 50 percent prior to January 4, 2017, for PTSD is denied.

From January 4, 2017, a 100 percent disability rating for PTSD is granted. 

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from February 10, 2015 is granted.

REMANDED

Entitlement to service connection for a left leg condition is remanded.

Entitlement to service connection for a right leg condition is remanded.

Entitlement to service connection for a left foot condition is remanded.

Entitlement to service connection for a right foot condition is remanded.

Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is remanded.

Entitlement to service connection for peripheral neuropathy of the left lower extremity, associated with diabetes mellitus, type II, is remanded.

Entitlement to service connection for peripheral neuropathy of the right lower extremity, associated with diabetes mellitus, type II, is remanded.

Entitlement to service connection for erectile dysfunction, associated with diabetes mellitus, type II, is remanded.

Entitlement to service connection for a thyroid condition, associated with diabetes mellitus, type II, is remanded.

Entitlement to service connection for diabetic retinopathy is remanded.

Entitlement to TDIU prior to February 10, 2015, is remanded.

FINDINGS OF FACT

1. An August 2012 RO decision denied the Veteran’s claim for entitlement to service connection for glaucoma suspect and preoperative cataracts in both eyes. The Veteran was notified of the decision and his appellate rights but did not timely appeal the decision or submit new and material evidence within one year of notice of the decision.

2. Evidence received since the August 2012 rating decision is not material and does not raise a reasonable possibility of substantiating the claim of service connection for glaucoma suspect and preoperative cataracts in both eyes.

3. The Veteran’s sleep apnea is caused and aggravated beyond the natural progress by his service-connected PTSD.

4. The Veteran did not have hypertension in service; the current disability is not linked to service.

5. The most probative evidence of record demonstrates that there has been no current back condition during the appeal period and that the Veteran’s back pain has not caused functional impairment.

6. The most probative evidence of record demonstrates that there has been no current disability of peripheral neuropathy of the bilateral upper extremities during the appeal period.

7. The Veteran does not have right ear hearing loss for VA purposes.

8. Entitlement to a 10 percent rating for the service-connected scar of the right temporal wound was not factually ascertainable prior August 7, 2014.

9. The Veteran filed his original claim for service connection for bilateral hearing loss on February 10, 2015.

10. The RO determined in the June 2015 rating decision that the issue of entitlement to service connection for tinnitus was included in the Veteran’s claim for entitlement to service connection for bilateral hearing loss, which was received by the RO on February 10, 2015.

11. Service connection for the scars on the radial and volar aspect of the proximal right forearm and PTSD was granted in an August 2012 rating decision, and the Veteran received notice of the decision but did not express timely disagreement within one year of that decision. 

12. Following the August 2012 rating decision, the most recent statement expressing a claim for additional benefits for his service-connected scars on the radial and volar aspect of the proximal right forearm was received by the Department of Veterans Affairs (VA) in February 2015.

13. Following the August 2012 rating decision, the most recent statement expressing a claim for additional benefits for his service-connected PTSD was received by the VA in February 2015.

14. The average puretone threshold in decibels during an authorized audiological evaluation in February 2007 was 26 in the left ear and the speech recognition score using the Maryland CNC speech discrimination test was 98 percent.

15. Throughout the rating period, the Veteran has been in receipt of a rating of 10 percent for tinnitus, which is the maximum schedular rating for that disability; and the probative evidence of record does not demonstrate factors warranting an extra-schedular rating.

16. The Veteran’s scar of the right temporal wound does not result in visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features and does not produce two or more characteristics of disfigurement.

17. The nonlinear, superficial scars on the radial and volar aspect of the proximal right forearm are neither painful nor unstable and do not limit the function of any affected body part.

18. Prior to January 4, 2017, the Veteran’s PTSD was not manifested by a lack of hygiene, speech that is illogical or incoherent, abnormal mental trends involving delusions or hallucinations, homicidal ideation, impaired insight, affect that is incongruent to mood, or psychosis that is productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, or other symptoms that meet or approximate deficiencies in most areas.

19. From January 4, 2017, the Veteran’s PTSD has been manifested by total occupational and social impairment.

20. The Veteran was unable to secure and follow substantially gainful employment as a result of his service-connected disabilities as of February 10, 2015.



CONCLUSIONS OF LAW

1. The August 2012 rating decision denying entitlement to service connection for glaucoma suspect and preoperative cataracts in both eyes is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018).

2. Since the August 2012 rating decision, new and material evidence has not been received to reopen the claim of entitlement to service connection for glaucoma suspect and preoperative cataracts in both eyes.  38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104 (a), 3.156, 3.160(d), 20.302 (2018).

3. The criteria for service connection for sleep apnea, to include as secondary to PTSD, have been met.  38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2018).

4. The criteria for service connection for hypertension are not met.  38 U.S.C. §§ 1101, 1110, 1112, 1131, 1132, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309 (2018).

5. The criteria for service connection for a back condition have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018).

6. The criteria for service connection for peripheral neuropathy of the bilateral upper extremities are not met.  38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103, 5103A (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018).

7. The criteria for entitlement to service connection for right ear hearing loss have not been met.  38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.385 (2018).

8. An effective date earlier than August 7, 2014, for the assignment of a 10 percent rating for the scar of the right temporal wound is not warranted.  38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400, 4.118, Diagnostic Code 7800 (2018).

9. The criteria for an effective date earlier than February 10, 2015, for the grant of service connection for left ear hearing loss have not been met.  38 U.S.C. §§ 5110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.400 (2018).

10. The criteria for an effective date earlier than February 10, 2015, for the grant of service connection for tinnitus have not been met.  38 U.S.C. §§ 5110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.400 (2018).

11. The criteria for an effective date prior to March 30, 2012, for the grant of service connection for scars on the radial and volar aspect of the proximal right forearm have not been met.  38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.114, 3.155, 3.400 (2018).

12. The criteria for an effective date prior to March 30, 2012, for the grant of service connection for PTSD have not been met.  38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.114, 3.155, 3.400 (2018).

13. The criteria for an initial compensable rating for hearing loss of the left ear have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.85, Tables VI, VIA and VII (Diagnostic Code 6100), § 4.86 (2018).

14. The criteria for an initial rating in excess of 10 percent for tinnitus have not been met.  38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.21, 4.87, Diagnostic Code 6260 (2018).

15. The criteria for a disability rating in excess of 10 percent for a scar of the right temporal wound have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.118, Diagnostic Codes 7800-7805 (2018).

16. The criteria for a compensable disability rating for scar of the radial and volar aspect of the proximal right forearm have not been met.  38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.31, 4.118, Diagnostic Code 7805 (2018).

17. Prior to January 4, 2017, the criteria for an initial disability rating in excess of 50 percent for PTSD, have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018).

18. From January 4, 2017, the criteria for a schedular evaluation of 100 percent for PTSD have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2018).

19.  As of February 10, 2015, the criteria for a TDIU have been met.  38 U.S.C.  §§ 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from December 1968 to January 1972.

This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the VA Regional Office (RO) in Chicago, Illinois, and Wichita, Kansas, and has subsequently been transferred to the RO in Winston-Salem, North Carolina.

Regarding a TDIU, although the record does not contain a timely substantive appeal for this issue, a TDIU claim is part and parcel of an increased rating claim when raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  As a result, the Board has jurisdiction to consider the Veteran’s possible entitlement to a TDIU when the issue is raised by assertion or reasonably indicated by the evidence and is predicated, at least in part, on the severity of the service-connected disabilities in question, regardless of whether the RO has expressly addressed this additional issue.  In an August 2018 Brief submitted by the Veteran’s attorney, the Veteran has raised the issue of a TDIU due, in part, to his service-connected disabilities currently on appeal. As such, the Board will consider the issue of a TDIU within this appeal.

Claim to Reopen

In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final.  38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2018).  A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim.  38 U.S.C. § 5108 (2012).

Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).  As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance.  Evans v. Brown, 9 Vet. App. 273, 285-86 (1996).

New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156 (2018).  For purposes of reopening a claim, the credibility of newly submitted evidence is generally 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.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted 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, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement.  Shade, 24 Vet. App. at 117-18.

Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156 (b).  Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence.  38 C.F.R. § 3.156(c)(1).  A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2).

The question of whether new and material evidence has been received to reopen a claim must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’g 8 Vet. App. 1 (1995).  If the Board finds that no such evidence has been offered, this is where the Board’s analysis must end; hence, what the RO may have determined in this regard is irrelevant.  Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383.

1. Whether new and material evidence was received to reopen the claim of entitlement to service connection for glaucoma suspect and preoperative cataracts in both eyes 

Regarding the Veteran’s claim to reopen his previously denied claim for service connection for glaucoma suspect and preoperative cataracts in both eyes, he was denied service connection by an August 2012 decision in which the RO determined that although there was a current condition of glaucoma, there was no evidence of complaints, treatment, or diagnosis of this condition in his service treatment records, it was not related to his shrapnel wound with resultant scar, nor was it aggravated by a service-connected disability.  The Veteran did not appeal the decision.  Therefore, the August 2012 rating decision is final.  See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1100 (2018).

In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b). However, here, such regulation is inapplicable as no new and material evidence pertaining to the Veteran’s claim for service connection for an eye condition was received prior to the expiration of the appeal period stemming from the August 2012 rating decision.  See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999).  Therefore, the August 2012 rating decision is final.  See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1100 (2018).

In February 2015, the Veteran submitted a claim to reopen this issue.  In June 2015 rating decision, the VA denied the Veteran’s claim to reopen as new and material evidence was not received.  Specifically, evidence received since the June 2015 rating decision did not demonstrate the Veteran’s condition began in or was caused by his military service.  The Veteran did not appeal the decision or submit new and material evidence within the one year time period.  Therefore, the August 2012 rating decision is final.  See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1100 (2018).

The August 2012 rating action, therefore, represents the last previous final decision on any basis as to the issue of whether the Veteran is entitled to service connection for an eye condition. Evans v. Brown, 9 Vet. App. 273 (1996).

According to the records received since the August 2012 rating, the Veteran continued his treatment for various disabilities.  There is no evidence of record that the Veteran’s glaucoma began during his military service or was secondary to, or aggravated by, a service-connected disability.

While the Board acknowledges that the evidence received since the August 2012 rating was not previously of record, it is not “material” to the Veteran’s claim as it does not establish that the Veteran’s glaucoma occurred in or was caused by his military service.  Thus, the VA treatment/examination records since the August 2012 rating decision do not address the Veteran’s contentions and there is no indication his symptoms and assessments stemmed from his military service.  Therefore, the additional evidence does not raise a reasonable possibility of substantiating the claim and, while “new” is not “material.” 

In sum, a review of the evidence of record fails to reveal any new and material evidence suggesting that the Veteran’s glaucoma is related to service. He has not informed VA of any evidence not of record that demonstrates this unestablished fact. 

The Board recognizes the threshold for reopening a claim is low, but it is a threshold nonetheless and, as described, the evidence that has been added since August 2012 clearly does not reach that threshold.  See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). 

As new and material evidence has not been submitted, the claim of entitlement to service connection for a left eye condition is not reopened.

Service Connection

Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service.  38 C.F.R. § 3.303(d).

Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (table)).

Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service, such as arthritis, or during the applicable presumptive period.  In addition, certain chronic diseases may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

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 chronicity is not established, then a showing of continuity of symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.30(b).  However, the regulatory provisions pertaining to chronicity and continuity of symptomatology are constrained by 38 C.F.R. § 3.309(a), and, thus, such provisions are only available to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). 

Any disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition.  38 C.F.R. § 3.310(a) (2018).  Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disorder, will be service connected.  However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  38 C.F.R. § 3.310(b) (2018); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995).

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran’s service as shown by such veteran’s service record, the official history of each organization in which such veteran served, such veteran’s treatment records, and all pertinent medical and lay evidence.  See 38 U.S.C. § 1154(a) (2012).

The United States Court of Appeals for the Federal Circuit has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis.  Under 38 U.S.C. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson 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); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).

The Board has thoroughly reviewed all the evidence in the Veteran’s claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf.  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).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims decided herein.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant.  Equal weight is not always accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

1. Entitlement to service connection for sleep apnea

Historically, the Veteran’s claim for entitlement to service connection for sleep apnea was initially denied in December 2014 rating decision which determined that a confirmed diagnosis of sleep apnea was not found.  As evidence of a current diagnosis of sleep apnea was not made, service connection was denied.  However, rather than submit a Notice of Disagreement, the Veteran submitted a new claim for entitlement to service connection for sleep apnea in February 2015 and the RO adjudicated the Veteran’s claim as one for whether new and material evidence was received to reopen this claim. 

The Board, however, finds that pursuant to 38 C.F.R. § 3.156(b) new and material evidence was received within one year of the issuance of the December 2014 rating decision.  Specifically, according to a January 2015 addendum to an October 2014 VA treatment record, it was determined that a review of two prior sleep screens showed the findings were “consistent with at least mild, possibly moderate, sleep apnea.”  Subsequently, the Veteran was prescribed a CPAP machine.  As such, the new evidence reflects a current diagnosis sleep apnea, which was the basis of a denial by the RO in December 2014; the Board finds that such evidence is new and material.  Therefore, the December 2014 rating decision is not final as this evidence was received within one year.  See also Bond, supra; Roebuck, supra; Muehl, supra.

Turning the evidence of record, the Veteran’s service treatment records do not reflect any complaints, treatment, or diagnosis of sleep apnea.  The Veteran’s December 1971 separation examination report also does not indicate any symptoms of sleep apnea or a diagnosis of such. 

As stated above, the Veteran’s diagnosis of sleep apnea has been confirmed.  

According to a VA Sleep Disabilities Benefits Questionnaire (DBQ), dated February 2017, the VA examiner opined it as was likely as not that the Veteran’s PTSD and medication to treat his symptoms “aided in the development of [obstructive sleep apnea] and have permanently aggravated his [obstructive sleep apnea].”  The VA examiner explained that research has shown that psychiatric disorders were commonly associated with sleep apnea where “[a] recent study found that subjects with mood disorders have a higher prevalence of a sleep apnea diagnosis.”  Furthermore, the use of medication for treatment of his PTSD was “associated with disruption in sleep continuity, in particular REM sleep which is where the majority of apnea episodes occur.”  The VA examiner stated “[it] has been reported that use of antidepressant medication leads to a greater chance of being diagnosed with [obstructive sleep apnea].”

The Board finds that the opinion of the February 2017 VA examiner highly probative.  The opinion is consistent with the other evidence of record and is supported by a rationale that the Veteran’s service-connected PTSD caused and aggravates the Veteran’s sleep apnea.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000).  There are no negative nexus opinions that contradict this opinion. Accordingly, service connection for sleep apnea secondary to PTSD is warranted, and the appeal is granted.

2. Entitlement to service connection for hypertension

The Veteran contends his hypertension is related to his military service. 

The Veteran's service treatment records are completely absent of any symptoms, treatment, or diagnoses referable to hypertension.  The December 1971 Report of Medical Examination and Report of Medical History at separation revealed there was no diagnosis of hypertension or problems with blood pressure.  Therefore, the Board finds that there is no in-service injury, event or disease and the second element of a claim for service connection is not satisfied.

The Veteran submitted a claim for service connection in February 2015 for hypertension.  

According to the post-service treatment records, the Veteran had a history of, and sought treatment for, hypertension.  Therefore, the existence of a current disability of hypertension is not in dispute.  However, there is no competent evidence showing that his current hypertension was etiologically related to his active service.  Relevant complaints, treatment, and/or diagnosis of hypertension is not shown in the record until after separation from military service.  

After consideration of the entire record and the relevant law, the Board finds that the Veteran's current hypertension is not related to service, and service connection is not established.  The medical evidence of record as a whole supports the proposition that there is no etiological relationship between the origin of hypertension and his military service.

The lay and medical evidence does not demonstrate that the Veteran's hypertension was been continuous since separation from service in January 1972.  Namely, the Board notes that according to a December 2011 VA treatment record, the Veteran denied a past medical history of hypertension.  The absence of post-service complaints, findings, diagnosis or treatment for approximately 40 years after service is one factor that tends to weigh against a finding of continuous symptoms of the condition.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability).  Further, hypertension was also not shown to a compensable degree within one year of separation from service so as to permit a grant of service connection on a chronic disease presumptive basis.

In this case, as there is no in-service injury, event or disease, there can be no existence of a causal relationship between the Veteran's hypertension and an in-service injury, event or disease.  Thus, a discussion of the lack of a nexus is not necessary.

Overall, the Board acknowledges the Veteran's contentions.  However, the only evidence of record in support of the Veteran's claim consists of his own lay statements.  The Veteran is considered competent to report the observable manifestations of his claimed disability.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service).  His assertions that he experiences symptoms are also credible.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, whether the Veteran has a current diagnosis of a claimed condition and the date of onset of such disorder, they fall outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons not competent to diagnose cancer).  Accordingly, his opinions are not significantly probative and are outweighed by the medical evidence of record noted above.

As such, after weighing and balancing the evidence of record, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran's hypertension is related to any in-service disease, event, or injury.  See 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  See 38 U.S.C. § 5107(b).  However, the doctrine of reasonable doubt is not for application concerning this claim as the weight of the evidence is against the claim.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the appeal of the claim for entitlement to service connection for hypertension must be denied.

3. Entitlement to service connection for a back condition

Turning to the evidence of record, service treatment records show that the Veteran did not indicate any complaints or symptoms of a back condition during service.  The December 1971 Report of Medical Examination and Report of Medical History at separation revealed there was no diagnosis of a back condition or problems related to his back.  

The medical records associated with the claims file do not document a back disorder.  The post-service treatment records reveal the Veteran experienced back pain although a diagnosis of a disability has not been made.  Pain without a diagnosis may constitute a disability for VA purposes if that pain causes functional impairment.  See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment.).  However, back pain causing functional impairment of the Veteran's earning capacity has not been shown or asserted.  

Furthermore, the Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to diagnose orthopedic disabilities, nor has he specifically identified any back disorder.  His lay evidence, to the extent that he has provided any, does not constitute competent evidence and lacks probative value.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994).

Overall, the existence of a current disability is the cornerstone of a claim for VA disability compensation.  In the absence of proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, there is not such an approximate balance of the positive and negative evidence to permit a favorable determination.

4. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, associated with diabetes mellitus, type II

The Veteran alleges that his peripheral neuropathy of the bilateral upper extremities is related to his military service.

Turning to the evidence of record, service treatment records reveal no complaints or symptoms of peripheral neuropathy of the upper extremities.  The December 1971 Report of Medical Examination and Report of Medical History at separation revealed there was no diagnosis of peripheral neuropathy in the upper extremities.  

In addition, post-service treatment records are absent of any complaints, treatment, or diagnosis for peripheral neuropathy of the bilateral upper extremities or symptoms of such.

Having reviewed the evidence of record, the Board finds that service connection for peripheral neuropathy of the bilateral upper extremities, is not warranted.

As previously stated, service connection presupposes a current disability.  See 38 C.F.R. §§ 3.102, 3.303 (2018); Brammer v. Derwinski, 3 Vet. App. 223 (1995); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  The Board recognizes that the issue of entitlement to service connection for diabetes mellitus, type II, is remanded below for additional development.  The Veteran’s claim for entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, associated with diabetes mellitus, type II, however, is not inextricably intertwined the claim for entitlement to service connection for diabetes mellitus, type II.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim).  Specifically, even if VA grants service connection for diabetes mellitus, type II, the competent and probative evidence shows that the Veteran does not have a current diagnosis of peripheral neuropathy of the upper extremities.  Thus, any development and adjudication of the diabetes mellitus, type II, claim would not impact the Veteran’s claim for entitlement to service connection for peripheral neuropathy of the upper extremities.

In assessing this claim, the Board has considered the Veteran’s lay assertions.  The Veteran is considered competent to report the observable manifestations of his claimed disability.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness is competent to prove that claimant exhibited certain symptoms at particular time following service).  However, the Veteran is not competent to opine on the diagnosis or etiology of his disabilities.  In this case, the diagnosis and etiology of peripheral neuropathy of the upper extremities is a complex medical question that is not within the competence of a layperson as it is not capable of lay observation; rather it is an internal medical process that require specialized diagnostic testing to detect.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011). 

In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  As the preponderance of evidence is against the Veteran’s claim, the doctrine does not apply, and the claims must be denied.  38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018).

5. Entitlement to service connection for right ear hearing loss

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. §3.385 (2016).

The Board points out that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

To establish service connection, the Veteran is not obliged to show that his hearing loss was present during active military service.  However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise.  Godfrey v. Derwinski, 2 Vet. App. 352 (1992).

Veteran contends that he has right ear hearing loss as a result of in-service noise exposure.  According to the Veteran’s DD 214, his military occupational specialty was light weapons infantry and he was awarded the Vietnam Service Medal, Vietnam Campaign Medial with device 60, Combat Infantryman’s Badge, grenade expert, 1st class Gunner (M-60), and Marksman (rifle M-16).  

According to the Veteran’s service treatment records, in December 1968, pure tone thresholds, in decibels, were as follows:

			HERTZ		

	500	1000	2000	3000	4000

RIGHT	10	0	5	-	0

					0



In December 1971, pure tone thresholds, in decibels, were as follows:

			HERTZ		

	500	1000	2000	3000	4000

RIGHT	20	15	10	-	20

					



In March 2015, the Veteran was afforded a VA audiological examination where pure tone thresholds, in decibels, were as follows for the right ear:



  	 	 	HERTZ	 	 

 	500	1000	2000	3000	4000

RIGHT	 20	20	25	25	20

					



Speech audiometry revealed speech recognition ability of 93 percent in the right ear.  The Veteran’s right ear was diagnosed as clinically normal and considered not disabling according to VA standards (38 C.F.R. § 3.385).

After consideration of the entire record and the relevant law, the Board finds that the Veteran’s claim for entitlement to service connection for right ear hearing loss must be denied.

The Board acknowledges the Veteran’s report of being exposed to acoustic trauma in service to be credible given his consistent statements of noise exposure and his military occupation specialty.  In giving due consideration to the places, types, and circumstances of his service, noise exposure is conceded.  38 U.S.C. § 1154(a). Service incurrence of acoustic trauma has been demonstrated.

However, in order to warrant service connection, the threshold requirement is competent medical evidence of the existence of the claimed disability at some point during a veteran’s appeal.  See McClain v. Nicholson, 21 Vet. App. 319 (2007) (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 during the pendency of that claim...even though the disability resolves prior to the Secretary’s adjudication of the claim”); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). 

While the Board recognizes the Veteran’s sincere belief in his right ear hearing loss claim and description of his symptoms, the most competent medical evidence of record does not show that the Veteran has a hearing loss disability for VA compensation purposes during any period of his appeal.  Indeed, as noted above, according to the objective evidence of record, the pure tone thresholds do not demonstrate sensorineural hearing loss as defined by VA regulations at any point during the appeal period.  Here, the VA examination findings for the bilateral ears do not demonstrate disability, as the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is not 40 decibels or greater; the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are not 26 decibels or greater; and speech recognition scores using the Maryland CNC Test are not less than 94 percent.  38 C.F.R. §3.385 (2018).

The Board has considered the Veteran’s assertions that his hearing problems are due to his military service.  In that regard, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge. His assertions in that regard are entitled to some probative weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Laypersons, however, are not generally competent to render an opinion as to the cause or etiology of a disability such as hearing loss because they do not have the requisite medical knowledge or training.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence).  Moreover, they are not always competent to diagnose themselves with a disability. 

In this case, the question of whether there is an actual hearing loss disability is answered by audiometric testing, and not by lay diagnosis, or even the diagnosis of the examiner administering the testing.  By regulation, VA defines what constitutes hearing loss, and does so by reference to audiometric findings and speech recognition scores.  The fact that diagnostic testing is required to establish the requisite level of impairment to legally constitute hearing loss renders lay opinions concerning the presence of hearing loss incompetent.  In other words, the Veteran is not competent to diagnose himself with right ear hearing loss.  Consequently, in light of the findings of the VA examination showing that the Veteran does not have a current hearing loss disability for VA compensation purposes, the Board concludes that the Veteran’s statements and opinions as to diagnosis and etiology are of no probative value.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). 

As there is no competent evidence of a current right ear hearing loss disability, the Board concludes that the preponderance of the evidence is against granting service connection.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for entitlement to service connection for right ear hearing loss must be denied.  See 38 U.S.C. § 5107(b) (2012); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 

Effective Date

Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service.  Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later.

In addition, except as otherwise provided, the effective date of an award of an increased rating shall be the date of receipt of claim or date entitlement arose, whichever is later.  38 C.F.R. § 3.400(o)(1).

1. Entitlement to an effective date prior to August 7, 2014, for an increased rating of 10 percent for the scar of the right temporal wound

An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation.  38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997).  The question of when an increase in disability is factually ascertainable is based on the evidence in the Veteran’s claims folder.  Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992).  In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2 (2018).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.  Id.

Thus, three possible dates may be assigned depending on the facts of the case:

(1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1));

(2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or

(3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); Harper, 10 Vet App at 126. 

In addition, the United States Court of Appeals for Veterans Claims (Court) has indicated that the service-connected disability must have increased in severity to a degree warranting an increase in compensation.  See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2) which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, “the only cognizable ‘increase’ for this purpose is one to the next disability level” provided by law for the particular disability).  Therefore, determining the appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred or was “ascertainable.”  38 C.F.R. §§ 3.155, 3.400(o)(2) (2018); Hazan, 10 Vet. App. at 521. 

The effective dates for “staged ratings” are established using the principle set forth at 38 C.F.R. § 3.400(o)(2), that is, the earliest date that it is factually ascertainable that the criteria for each disability rating were met.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In determining when an increase is “factually ascertainable,” look to all of the evidence including testimonial evidence and expert medical opinions as to when the increase took place.  VAOPGCPREC 12-98.

The Veteran claims that the effective date assigned for his 10 percent disability rating for the scar of the right temporal wound should be prior to August 7, 2014.  The effective date of August 7, 2014, was assigned by the RO in a June 2015 rating decision, which was the date a VA Form 21-4142 Authorization for Release of Information was received indicating he was treated for shrapnel scars at a VA Medical Center.  The RO determined that although a claim was not pending for the scar of the right temporal wound, the Veteran clarified in February 2015 that he wanted to file a claim for increased evaluation of the scar of the right temporal wound.  As such, once the RO determined a 10 percent disability rating was warranted, the date the Veteran notified the RO additional treatment records for the scar of the right temporal wound was assigned as the effective date.

As stated, the Veteran was awarded a 10 percent disability rating under 38 C.F.R. § 4.118, Diagnostic Code 7800 for his service-connected scar of the right temporal wound based on an April 2015 VA examination showing that the length of the scar decreased, and the width of the scar increased (measured at 4 cm by 1 cm).  The scar continued to be non-painful.  A review of the VA treatment records as identified by the Veteran in the August 2014 VA Form 21-4142, indicate the Veteran was treated for shrapnel wounds on his arm and right temple.  The Board notes that VA treatment records pertaining to the right temple however, are dated prior to August 7, 2013, and do not reflect an ascertainable increase in disability.  

Under Diagnostic Code 7800, a 10 percent rating is granted for scars with one characteristic of disfigurement.  A 30 percent rating is warranted for scars 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; with two or three characteristics of disfigurement.  A 50 percent rating is warranted for scars 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; with four or five characteristics of disfigurement.  An 80 percent rating, the highest available under the Diagnostic Code, is warranted for scars 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; with six or more characteristics of disfigurement.  38 C.F.R. § 4.118 Diagnostic Code 7800. 

The 8 characteristics of disfigurement under 38 C.F.R. § 4.118 are: 1) scar 5 or more inches (13 or more cm.) in length; 2) scar at least one-quarter inch (0.6 cm.) wide at widest part; 3) surface contour of scar elevated or depressed on palpation; 4) scar adherent to underlying tissue; 5) skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); 6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); 7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); 8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.).

Under Diagnostic Code 7804, a 10 percent rating is assigned for one or two scars which are unstable or painful.  A 20 percent rating is assigned for three or four scars that are unstable or painful and a 30 percent rating is warranted for five or more scars that are unstable or painful.  This is the highest rating available under the Diagnostic Code.  In addition, if one or more scars are both painful and unstable, 10 percent will be added to the evaluation based on the total number of unstable or painful scars.  38 C.F.R. 4.118, Diagnostic Code 7804, Note (2).

Upon review of the evidence of record, the Board finds that an effective date prior to August 7, 2014, is not warranted for the assignment of a 10 percent disability rating for the scar of the right temporal wound. 

No communication relating to this disability was submitted by the Veteran or on his behalf during the one-year period prior to his August 7, 2014, VA Form 21-4142 Authorization for Release of Information which may be construed as a claim.  As there were no relevant communications received from the Veteran in the one-year period prior to his August 7, 2014, claim, there is nothing that may be construed as an informal increased rating claim for a scar of the right temporal wound.

Additionally, the medical evidence is negative for any factually ascertainable increase in disability of the Veteran’s scar of the right temporal wound prior to his currently assigned August 7, 2014, effective date and within the one-year period prior to this date of claim.  As stated above, there were no VA treatment records relating to a scar of the right temporal wound for this period.  The Veteran himself does not argue such.  The Board notes the evidence of record indicates a later effective date of April 1, 2015, rather than his currently assigned August 7, 2014, is warranted as this date reflects an increase in disability as shown in the VA examination (specifically, the presence of one characteristic of disfigurement; the scar of the right temporal wound was measured at least one-quarter inch wide at widest part).  However, the Board will not disturb the RO’s decision.  There is simply no evidence showing a factually ascertainable increase in disability for a scar of the right temporal wound prior to the current effective date of August 7, 2014.

As there are no documents or treatment records submitted that could be construed as an informal claim, and no competent evidence demonstrating that an increase in disability was factually ascertainable, prior to August 7, 2014, the effective date of the assignment of a 10 percent evaluation for a scar of the right temporal wound cannot be earlier than August 7, 2014.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018).

Accordingly, the Board finds that the claim of entitlement to an effective date prior to August 7, 2014, for the award of a 10 percent evaluation for a scar of the right temporal wound must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an earlier effective date, that doctrine is not applicable.  38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).

2. Entitlement to an effective date prior to February 10, 2015, for the grant of service connection for hearing loss of the left ear

3. Entitlement to an effective date prior to February 10, 2015, for the grant of service connection for tinnitus 

Prior to March 24, 2015, a claim was “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).  An informal claim is “[a]ny communication or action indicating intent to apply for one or more benefits.” 38 C.F.R. § 3.155(a).  VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits.  Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).  The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing.  Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits).

On February 10, 2015, VA received an Application for Disability Compensation and Related Compensation Benefits.  The list of conditions from the Veteran that he contended should be service connected included bilateral hearing loss.  A review of the record does not reveal any earlier claim for service connection for these disorders.

The Veteran reported at his March 2015 VA audiological examination that his tinnitus began in 1972 following military noise exposure.  He was diagnosed with sensorineural hearing loss in the left ear and met the criteria to be considered a disability for VA purposes.  The VA audiologist opined that the Veteran’s left ear hearing loss was at least as likely as not caused by or a result of an event in military service. 

According to the June 2015 rating decision, the RO determined that although the Veteran did not submit a claim for entitlement to service connection for tinnitus, they “sympathetically” included tinnitus in his claim for hearing loss.  Subsequently, the Veteran was granted entitlement to service connection for hearing loss of the left ear at a noncompensable rating, and tinnitus at a 10 percent disability rating, both effective February 10, 2015. 

The Board acknowledges the Veteran’s contention that service connection for the conditions should be granted earlier effective dates.  However, the evidence does not reflect that the Veteran filed a claim for service connection for hearing loss and tinnitus within a year of his separation from service and the first claim for the conditions that the Board is able to locate within the Veteran’s claims file is from February 10, 2015.  No earlier communication or action by the Veteran can be interpreted as a claim for service connection for hearing loss of the left ear or tinnitus.  See 38 C.F.R. §§ 3.1(p), 3.155(a); Servello, 3 Vet. App. at 198.  Therefore, the Board finds that February 10, 2015, is the proper effective dates for service connection for the disabilities.  There is no reasonable doubt to be resolved as to this matter.

4. Entitlement to an effective date prior to March 30, 2012, for the grant of service connection of the scars on the radial and volar aspect of the proximal right forearm

5. Entitlement to an effective date prior to March 30, 2012, for the grant of service connection of PTSD

Applicable law and regulations provide that the effective date for a grant 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 the later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  However, in Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), the Court held that once a decision establishing an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error (CUE).  The Court noted that any other result would vitiate the rule of finality.  Accordingly, the Court found that there can be no valid freestanding claim for an earlier effective date.  Therefore, if a freestanding claim for an earlier effective date is raised, an appeal in the matter should be dismissed.

The basic facts in this case are not in dispute.  The Veteran’s initial claim of service connection for the scars on the radial and volar aspect of the proximal right forearm and PTSD was received on March 30, 2012.  The Veteran’s claims of entitlement to service connection for the scars on the radial and volar aspect of the proximal right forearm and PTSD were granted by the RO in August 2012.  The service-connected scars on the radial and volar aspect of the proximal right forearm were assigned a noncompensable rating, effective March 30, 2012, and PTSD was assigned a 50 percent disability rating, effective March 30, 2012.  The Veteran did not submit a timely Notice of Disagreement or submit any new and material evidence within the one-year appeal period, and thus it is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2018).

In February 2015, the Veteran filed a claim for an increased disability rating for scars on the radial and volar aspect of the proximal right forearm and PTSD. Subsequently, a June 2015 rating decision determined evidence of record did not demonstrate that the Veteran’s service-connected scars on the radial and volar aspect of the proximal right forearm and PTSD warranted an increased disability rating.  The Veteran submitted a timely Notice of Disagreement in August 2015 appealing the disability rating and the effective date.  The February 2018 Statement of the Case addressed the Veteran’s claims for an effective date prior to March 30, 2012, for the grants of service connection for the scars on the radial and volar aspect of the proximal right forearm and PTSD.  The Veteran submitted a timely substantive appeal with the disability rating and the effective date of the grant of service connection for these disabilities. 

In this case, the Board finds that an effective date prior to March 30, 2012, for the grant of service connection for the scars on the radial and volar aspect of the proximal right forearm and PTSD are not warranted.  Here, the question of the Veteran’s entitlement to an earlier effective date for the grant of service connection for these disabilities is res judicata, and the finality of the August 2012 decision that assigned the effective dates precludes VA from assigning earlier effective dates for that award.  If a rating decision that assigns an effective date becomes final, the Board should dismiss any subsequently filed claim for an earlier effective date assigned by that final decision for lack of jurisdiction.  As such, there is no legal basis upon which to grant the benefit sought, and the claim on appeal must be dismissed as without legal merit.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

As stated above, in order for the Board to consider an effective date prior to March 30, 2012, the Veteran would have to raise a claim for CUE with the August 2012 rating decision, as there is no such thing as a free standing earlier effective date claim.  See, Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that a freestanding claim for an earlier effective date is a nullity, and the only basis for challenging the effective date of a now final decision is CUE).  However, there is no communication from the Veteran specifically asserting CUE in the August 2012 decision.  Therefore, the Board concludes that the issue of CUE has not been raised.  The Veteran is free to file a claim of CUE in the future should he desire. 

Here, because the RO’s August 2012 rating decision granting service connection for scars on the radial and volar aspect of the proximal right forearm and PTSD is final, and because CUE has not been raised, the Board finds that March 30, 2012, the date on which the Veteran’s request for service connection for the scars on the radial and volar aspect of the proximal right forearm and PTSD was received, is the correct effective date for the grant of these disabilities.

Increased Disability Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2018).  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2018).  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran’s favor.  38 C.F.R. § 4.3 (2018).

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2018).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.”  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time.  Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings).  When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim.  Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009).

1. Entitlement to an initial compensable rating for hearing loss of the left ear

The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations of bilateral sensorineural hearing loss range from noncompensable (zero percent) to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second (Hertz).  See 38 C.F.R. § 4.85 (2018). 

To evaluate the degree of disability for service-connected hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from Level I for essentially normal acuity through Level XI for profound deafness.  See 38 C.F.R. § 4.85 and Tables VI, VIA, and VII (Diagnostic Code 6100) (2018).  If impaired hearing is service connected in only one ear, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I in order to determine the percentage evaluation from Table VII, subject to the provisions of 38 C.F.R. § 3.383.  See 38 C.F.R. § 4.85 (f) (2018).  In the present case, the Veteran’s nonservice-connected right ear hearing does not meet the provisions of 38 C.F.R. § 3.385 so as to be considered a disability.  Thus, right ear hearing is assigned Roman numeral I.  Section 4.86 provides an alternative rating method which may be used for certain defined “exceptional patterns of hearing impairment.”  Section 4.85(a) requires that an examination for hearing loss be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC test) and a pure tone audiometry test.  Examinations must be conducted without the use of hearing aids.  Section 4.85(c) indicates that Table VIA, “Numeric designation of Hearing Impairment Based Only on Puretone Threshold Average,” will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of inconsistent speech discrimination scores. 

Service connection for left ear hearing loss was established in the June 2015 rating decision.  A noncompensable evaluation was assigned pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100, effective June 23, 2006. The Veteran has contended that he is entitled to a compensable rating for his left ear hearing loss.

Turning to the evidence of record, the Veteran was afforded a VA audiological examination in March 2015 where on the authorized VA audiologic evaluation for rating purposes pure tone thresholds, in decibels, were as follows:



 	 	 	HERTZ	 	 

 	500	1000	2000	3000	4000

RIGHT	 20	15	30	30	30

LEFT	 20	20	25	25	20



The pure tone average was 26 Hertz in the right ear for the frequencies 1000-4000 Hertz.  Speech audiometry revealed speech recognition ability of 98 percent in the right ear.  



Under Table VI, 38 C.F.R. § 4.85, the results for the left ear correspond to Level I. As the Veteran’s right ear is not service-connected and he does not meet the requirements for a disability under 38 C.F.R. § 3.385, a Level I designation has been assigned to determine the percentage evaluation from Table VII.  See 38 C.F.R. § 4.85(f) (2018).  The applicable percentage rating for hearing impairment at Level I for the poorer ear (left ear) and Level I in the better ear (right ear) is zero under Table VII, 38 C.F.R. § 4.85 (2018).

The preponderance of the evidence does not support the assignment of a compensable rating for left ear hearing loss under Diagnostic Code 6100.  The Board acknowledges the assertions made by the Veteran that his hearing acuity is not adequately rated.  However, the audiologic test results produced by VA did not indicate the Veteran's left ear hearing loss was compensable under Diagnostic Code 6100.



The Board has considered whether 38 C.F.R. § 4.86(a) applies in this case. Consideration under this provision, however, is not warranted, as the left ear did not display pure tone thresholds of 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz), with each ear evaluated separately. 



The Board has also considered whether 38 C.F.R. § 4.86(b) applies in this case.  Consideration under this provision, however, is not warranted, as the left ear did not display pure tone thresholds 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, with each ear evaluated separately. 

The Board notes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  The Court’s rationale in requiring an examiner to consider the functional effects of a Veteran’s hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b) in considering whether referral for an extra-schedular rating is warranted.  Specifically, the Court noted that, “[u]nlike the rating schedule for hearing loss, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extra[- ]schedular rating is warranted.  The Secretary’s policy [requiring VA audiologists to describe the effect of a hearing disability on a Veteran’s occupational functioning and daily activities] facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application.” Martinak, 21 Vet. App. at 455.  Here, the VA examiner indicated that the Veteran’s hearing loss impacts ordinary conditions of daily life, including the ability to work.  The Veteran reported that he misses conversation, has difficulty hearing in the presence of competing noise and the television has to be loud.  The Board finds that both the Veteran and the VA examiner described impairment which is not exceptional or unusual.  Rather, difficulty hearing is the type of impairment directly anticipated with a grant of service connection for hearing loss.  No basis is presented for extra-schedular consideration.  

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

In sum, a compensable rating is not warranted for the service-connected hearing loss of the left ear.

2. Entitlement to an initial increased disability rating in excess of 10 percent for tinnitus

The Veteran seeks an initial increased rating in excess of 10 percent for his service-connected tinnitus. 

The Veteran seeks an initial increased rating for his service-connected tinnitus, currently rated 10 percent disabling under Diagnostic Code 6260.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  Under Diagnostic Code 6260, a single 10 percent disability rating is warranted for tinnitus, regardless of whether it is unilateral or bilateral, or whether it is constant versus recurrent.  Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).  Accordingly, the Veteran's appeal for an initial increased rating in excess of 10 percent for his tinnitus is denied.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

The Veteran's symptoms, including difficulty hearing, difficulty with speech discrimination, and ringing in his ears, are contemplated by the diagnostic code and by the also service-connected bilateral hearing loss diagnostic criteria.  See 38 C.F.R. § 4.85 (2018); Evaluation of Hearing Loss, 52 Fed. Reg. 17,607 (May 11, 1987); Schedule for Rating Disabilities; Diseases of the Ear and Other Sense Organs, 59 Fed. Reg. 17,295 (April 12, 1994); 64 Fed. Reg. 25,206 (May 11, 1999).  Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

3. Entitlement to an increased disability rating in excess of 10 percent for a scar of the right temporal wound 

As discussed above, the regulations in 38 C.F.R. § 4.118 are applicable to the Veteran’s scar of the right temporal wound.  Diagnostic Code 7800 states in relevant part that: A scar of the head, face, or neck with one characteristic of disfigurement warrants a 10 percent evaluation.  Note (1) to Diagnostic Code 7800 states that the eight characteristics of disfigurement are: scar 5 or more inches (13 or more centimeters) in length, scar at least one-quarter inch (0.6 centimeters) wide at 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 six square inches (39 square centimeters), skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters), underlying soft tissue missing in an area exceeding six square inches (39 square centimeters), and skin indurated and inflexible in an area exceeding six square inches (39 square centimeters).  A 30 percent evaluation is warranted for a scar of the head, face, or neck 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 with two or three characteristics of disfigurement.  38 C.F.R. § 4.118, Diagnostic Code 7800 (2018). 

Diagnostic Code 7804 states in relevant part that: One or two scars that are unstable or painful warrant a 10 percent evaluation.  Three or four scars that are unstable or painful warrant a 20 percent evaluation.  Note (1) to the diagnostic code states that “An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.”  Note (2) to the diagnostic code states that “If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars.”  Note (3) to Diagnostic Code 7804 states, in relevant part, that scars evaluated under Diagnostic Code 7800 may also receive an evaluation under Diagnostic Code 7804, if applicable.  38 C.F.R. § 4.118, Diagnostic Code 7804 (2018). 

According to an April 2015 VA examination, the scar was measured at 4 cm by 1 cm.  The scar was not painful; unstable with frequent loss of covering of skin over the scar; painful and unstable; or due to a burn.  The scar also did not result in limitation of function.

The Board concludes that the Veteran’s disability picture does not more nearly approximate the criteria for a 30 percent evaluation under Diagnostic Code 7800.  38 C.F.R. § 4.118.  There is no evidence that the Veteran’s scar of the right temporal wound has visible or palpable tissue loss, gross distortion or asymmetry of one feature or paired set of features, or that his scar exhibits any other characteristics of disfigurement.  The Board also concludes that the Veteran only has one service-connected scar on his right temple and that there is no evidence that this scar is unstable.  Therefore, a 20 percent evaluation under Diagnostic Code 7804 is not warranted.

In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased rating for his service-connected scar of the right temporal wound.  38 U.S.C. § 5107.  Furthermore, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

4. Entitlement to a compensable disability rating of a scar of the radial and volar aspect of the proximal right forearm

Under the provisions of 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805, scars are rated based on varying manifestations.  The scar of the radial and volar aspect of the proximal right forearm is currently rated as 0 percent (noncompensable) disabling under Diagnostic Code 7805 which provides that any scars (including linear scars) disabling effects not considered in a rating provided under Diagnostic Codes 7800, 7801, 7802, and 7804 should be evaluated under an appropriate diagnostic code.

Diagnostic Code 7800, however, is not applicable as it relates specifically to scars of the head, face, or neck.  A compensable evaluation under Diagnostic Code 7801 is warranted for deep (associated with underlying soft tissue damage) scars of any area of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.).  A compensable evaluation under Diagnostic Code 7802 is warranted for superficial (not associated with underlying soft tissue damage) scars of any area of greater than 144 square inches (929 sq. cm.).  A compensable evaluation under Diagnostic Code 7804 requires one or two scars that are unstable or painful.  Note (1) to this diagnostic code provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (2) to this diagnostic code provides that if one or more scars are both unstable and painful, 10 percent is added to the evaluation based on the total number of unstable or painful scars.  Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable.  38 C.F.R. § 4.118.

In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.

The pertinent evidence in this case consists almost entirely of clinical findings from VA examination in April 2015.  Two scars on the right upper extremity were identified, specifically on the Veteran’s right forearm.  They were not painful; not unstable, with frequent loss of covering of skin over the scar; not both painful and unstable; and not due to burns.  The first scar was measured at 2 cm in length and the second scar was measured at 5 cm in length.  They are linear scars.

Further review of the claims file shows that the Veteran has not sought or received ongoing treatment for these scars, following this examination nor has he contended otherwise.

Applying the Veteran’s symptomatology to the rating criteria, the Board finds that a compensable evaluation for the scars of the radial and volar aspect of the proximal right forearm is not warranted.  Specifically, the Veteran’s scars are superficial, and he did not clearly describe them as painful or unstable on VA examination and no such conditions were identified by the VA examiner.  The scars do not involve the head, face, or neck and the medical evidence does not suggest scars of a size warranting a compensable evaluation, i.e., nonlinear scars with an area or areas of  at least 6 square inches (39 sq. cm. or greater).  There have been no other pertinent physical findings, complications, signs and/or symptoms (such as muscle or nerve damage) associated with the scars and there is no indication these scars impact the Veteran’s ability to work.  Without any medical evidence of greater impairment, the claim must be denied.  A compensable evaluation is therefore not warranted under Diagnostic Codes 7800, 7801, 7802, 7804, or 7805.  See 38 C.F.R. § 4.118.  As the evidence clearly indicates that the service-connected disability is a scar disability, the Board does not find a basis for considering the criteria for other skin disorders, that entail different symptoms and therapies.

Accordingly, the Board finds that the Veteran’s impairment due to the scars of the radial and volar aspect of the proximal right forearm is more consistent with a noncompensable disability rating and that the level of disability necessary to support the assignment of a 10 percent rating or higher is absent.  A preponderance of the evidence is against the claim and there is no reasonable doubt to be resolved.  Furthermore, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

5. Entitlement to an increased disability rating in excess of 50 percent prior to March 22, 2018, for PTSD

The Veteran’s service-connected PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411 as 50 percent disabling prior to March 22, 2018.  He asserts that a higher rating is warranted.

Service connection was established for PTSD in an August 2012 rating decision and a 50 percent disability rating was assigned, effective March 30, 2012.  In an April 2018 rating decision, the Veteran’s evaluation for PTSD was increased to 100 percent disabling, effective March 22, 2018.  The only time period for consideration before the Board at the current time is prior to March 22, 2018.

Under Diagnostic Code 9411, a 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term 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; difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.  Id.

Lastly, a 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.

Symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).

Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission.  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of examination.  See 38 C.F.R. § 4.126(a) (2018).  Further, when evaluating the level of disability arising 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(b).  It is necessary to evaluate a disability from the point of view of the veteran working or seeking work.  38 C.F.R. § 4.2 (2018).

It should be noted that VA regulations allow for the assignment of an increased rating 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.  38 C.F.R. §§ 3.157, 3.400(o)(2).  In this case, as the Veteran filed his increased rating claim in February 2015, VA must review the evidence of record from February 2014, to determine if there was an ascertainable increase in severity of the Veteran’s PTSD.  In so doing, the Board must also consider all potentially applicable regulations pertaining to rating a disability.

Turning to the evidence on appeal, according to a March 2014 VA psychiatry medical management note, the Veteran was alert to person, place, time; maintained eye contact; and denied adverse reactions to his medication.  He stated his sleeping medication was “largely helpful” and his mood was “pretty good.”  He stated he got along better with his wife and wanted to respond “helpfully” to her feelings.  It was noted the Veteran was stable, moderate in range, and denied suicidal and homicidal intent and plan.  The Veteran’s thoughts were coherent, linear, no flight of ideas, no looseness of association, and no evidence of psychosis or mania.  The Veteran’s speech was normal in tone, rate, and volume.  

In April 2014, a VA emergency department triage note indicated the Veteran was alert to person, place, time, and did not have homicidal or suicidal thoughts. 

According to a May 2015 VA psychiatry medical management note, the Veteran alert to person, place, time; maintained eye contact; and denied adverse reactions to his medication.  He stated he has been sick and “there’s been no mood.”  The Veteran was stable, moderate in range, and denied suicidal and homicidal intent and plan.  The Veteran’s thoughts were coherent, linear, no flight of ideas, no looseness of association, and no evidence of psychosis or mania.  The Veteran’s speech was normal in tone, rate, and volume.  

In a separate VA note, dated May 2014, the Veteran was psychologically stable; alert and oriented without cognitive deficits; able to care for himself independently; able to attend his appointment independently without assistance; and able to take his medication independently.  

In June 2014, the Veteran stated he was “not as irritated about everything, I’m calm… I don’t flare up as much as I used to…”  He stated he and his wife were “getting along a little better…”  The Veteran was stable, moderate in range, and denied suicidal and homicidal intent and plan.  The Veteran’s thoughts were coherent, linear, no flight of ideas, no looseness of association, and no evidence of psychosis or mania.  The Veteran’s speech was normal in tone, rate, and volume.  

In July 2014, the Veteran stated had “a few issues” with his mood and he dreaded being at home due to problems in his marriage.  He was alert to person, place, time; maintained eye contact; and denied adverse reactions to his medication.  He stated he has been sick and “there’s been no mood.”  The Veteran was stable, moderate in range, and denied suicidal and homicidal intent and plan.  The Veteran’s thoughts were coherent, linear, no flight of ideas, no looseness of association, and no evidence of psychosis or mania.  The Veteran’s speech was normal in tone, rate, and volume.  

According to an August 2014 VA screening note, the Veteran was psychologically stable; alert and oriented without cognitive deficits; able to care for himself independently; able to attend his appointment independently without assistance; and able to take his medication independently.

In September 2014, the Veteran stated he was seeing a marriage counselor with his wife and “it didn’t go very well…”  He stated his home life was not as tense, but he was still experiencing night sweats.  The Veteran was alert to person, place, time; maintained eye contact; and denied adverse reactions to his medication.  He stated he has been sick and “there’s been no mood.”  The Veteran was stable, moderate in range, and denied suicidal and homicidal intent and plan.  The Veteran’s thoughts were coherent, linear, no flight of ideas, no looseness of association, and no evidence of psychosis or mania.  The Veteran’s speech was normal in tone, rate, and volume.  His insight and judgment were good. 

In November 2014, the Veteran stated he experienced sleep disturbances more frequently which brought back memories of his service in Vietnam.  He stated his mood was better, but he felt pressure during the holidays.  The Veteran was alert to person, place, time; maintained eye contact; and denied adverse reactions to his medication.  He stated he has been sick and “there’s been no mood.”  The Veteran was stable, moderate in range, and denied suicidal and homicidal intent and plan.  The Veteran’s thoughts were coherent, linear, no flight of ideas, no looseness of association, and no evidence of psychosis or mania.  The Veteran’s speech was normal in tone, rate, and volume.  His insight and judgment were good.

In January 2015, the Veteran stated his mood was better on some days but worse on others and much of it was related to his marital issues.  The Veteran was alert to person, place, time; maintained eye contact; and denied adverse reactions to his medication.  He stated he has been sick and “there’s been no mood.”  The Veteran was stable, moderate in range, and denied suicidal and homicidal intent and plan.  The Veteran’s thoughts were coherent, linear, no flight of ideas, no looseness of association, and no evidence of psychosis or mania.  The Veteran’s speech was normal in tone, rate, and volume.  His insight and judgment were good.

In March 2015, the Veteran stated his mood was “not very good lately…it’s a combination of things, the CPAP, my wife… I’m unhappy and not a whole lot to do about it.”  The Veteran was alert to person, place, time; maintained eye contact; and denied adverse reactions to his medication.  He stated he has been sick and “there’s been no mood.”  The Veteran’s affect was stable, moderate in range, and denied suicidal and homicidal intent and plan.  The Veteran’s thoughts were coherent, linear, no flight of ideas, no looseness of association, and no evidence of psychosis or mania.  The Veteran’s speech was normal in tone, rate, and volume.  His insight and judgment were good.

The Veteran was afforded a VA PTSD examination in April 2015 where it was noted that he continued to have symptoms of recollections of traumatic events in Vietnam, with hyperstartle reactions of sudden noises, and avoided crowds.  He makes sure that all doors and windows are locked at night fearing someone may break into his house.  He stated he only slept three to four hours a night.  The VA examiner stated that the Veteran’s level of occupational and social impairment with regard to his PTSD was best summarized as mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.  His symptoms included depressed mood, anxiety, and chronic sleep impairment.  The Veteran was alert, friendly, and cooperative.  He was not psychotic and did not have suicidal or homicidal ideation.  The Veteran’s affect was appropriate to content, and mood was depressed. 

According to a June 2015 VA treatment record, the Veteran stated his sleep disturbances and stress in his marriage persisted.  He stated they considered separating.  His mood was “awful” and much of it was related to domestic issues.  The Veteran was alert to person, place, time; maintained eye contact; and denied adverse reactions to his medication.  He stated he has been sick and “there’s been no mood.”  The Veteran’s affect was stable, moderate in range, and denied suicidal and homicidal intent and plan.  The Veteran’s thoughts were coherent, linear, no flight of ideas, no looseness of association, and no evidence of psychosis or mania.  The Veteran’s speech was normal in tone, rate, and volume.  His insight and judgment were good.

The Veteran reported in September 2015 that an increase in his medication helped his sleep.  He stated he and his wife were sleeping in separate rooms rather than him moving out.  He stated his mood fluctuated but he was “a little bit more depressed than usual.”  The Veteran was alert to person, place, time; maintained eye contact; and denied adverse reactions to his medication.  He stated he has been sick and “there’s been no mood.”  The Veteran’s affect was stable, moderate in range, and denied suicidal and homicidal intent and plan.  The Veteran’s thoughts were coherent, linear, no flight of ideas, no looseness of association, and no evidence of psychosis or mania.  The Veteran’s speech was normal in tone, rate, and volume.  His insight and judgment were good.

In January 2016, the Veteran endorsed intrusive thoughts, nightmares, reactivity to cues (such as fireworks), avoidance of cues, isolative behavior, emotional detachment, anhedonia, sense of foreshortened future, irritability, poor sleep, hypervigilance, and poor concentration.  He stated his relationship with his wife improved since using separate bedrooms.  He stated he spent most of his days downstairs, tinkering on car in the garage, walking his new German Shepherd, and listening to music.  He spoke to his son daily and was seeing his granddaughter but had no other regular social contacts.  He described his mood as “okay” and admitted to period of sadness, but not persistent.  The Veteran stated he had a history of suicidal ideation but not recently, there was no history of attempts.  He stated he had brief irritability but is able to distance himself from it.  He still experienced sleep disturbances such as nightmares but he was able to sleep from 11pm to 5am.  The Veteran reported that conversations of trauma will trigger sadness and being in the darkness at night makes him think of the jungle and felt hypervigilance.  Loud noises continued to cause the Veteran an exaggerated startle.  The Veteran was pleasant, cooperative, had good grooming/hygiene, good eye contact.  His speech and motor were within normal limits.  He stated his mood “has been worse, not the greatest, but I’m okay with it.”  The Veteran’s affect was bright and reactive.  Thought process linear, coherent.  The Veteran did not have suicidal or homicidal ideation, and no auditory or visual hallucinations.  Finally, his insight and judgement were good. 

In April 2016, the Veteran stated he was doing “pretty good” and the main issue remained his sleep disturbances.  His energy remained limited throughout the day, but he could not nap.  He spent his days caring for his dog, working on his car, and doing small chores.  The Veteran reported enjoying his “quiet space” in the basement where he listened to his music.  He felt his relationship with his wife improved as they have occasional meals together and were able to communicate better.  He denied any escalations in his temper.  He enjoyed seeing his son regularly and his granddaughter.  His mood was described as a 5 out of 10.  He stated loud noises continued to cause a startle response.  The Veteran was pleasant, cooperative, had good grooming/hygiene, and good eye contact.  His speech and motor were within normal limits.  The Veteran’s affect was bright and reactive.  Thought process was linear, coherent.  The Veteran did not have suicidal or homicidal ideation, and no auditory or visual hallucinations.  His insight and judgement were good.

In July 2016, the Veteran reported doing “pretty good” and he spent most of the time in his own bedroom apart from his wife which has improved their relationship.  He stated her demands may lead to brief arguments.  The Veteran stated having less anger in response than previously.  He continued to enjoy his days with his granddaughter, walking his dog, and working in the garage.  He reported his mood was better, stating “I think pretty good.”  He experienced some irritability when driving and would have “outbursts to myself” but no confrontations with other drivers or erratic driving.  He stated having intrusive thoughts, but no flashbacks when he was idle.  He stated he was anxious on July 4th, but his dog kept him grounded.  The Veteran was pleasant, cooperative, had good grooming/hygiene, and good eye contact.  His speech and motor were within normal limits.  The Veteran’s affect was bright and reactive.  Thought process was linear, coherent.  The Veteran did not have suicidal or homicidal ideation, and no auditory or visual hallucinations.  His insight and judgement were good.

In October 2016, the Veteran stated his mood was “a little depressed” as he continued to receive treatment for various eye conditions.  He reported he has helped his wife since her knee replacement and it had “rebounded us.”  He stated he was able to catch himself during brief verbal altercations when feeling overwhelmed by her needs.  The Veteran stated helping her during the night limited his sleep.  He reported having less intrusive thoughts of trauma due to his focus on his wife.  He stated his granddaughter was helpful when she came home from school during the week.  The Veteran was pleasant, cooperative, had good grooming/hygiene, and good eye contact.  His speech and motor were within normal limits.  The Veteran’s affect was bright and reactive.  Thought process was linear, coherent.  The Veteran did not have suicidal or homicidal ideation and no auditory or visual hallucinations.  His insight and judgement were good.

On January 3, 2017, the Veteran reported difficulty though the holidays and needing to avoid gatherings with his wife’s family as being in crowds made him “nervous and uneasy.”  He stated his wife had been more understanding.  He stated he had some contact with his son and more rarely his niece who he helped raise.  He was pleased that his eye pressures were improved and without further vision changes.  His mood was “getting better” where the “good moments [were] balancing out the bad moments.”  He still had sleep disturbances.  He stated he spent some days helping a friend repair his truck and caring for his dog.  He had some anxiety with New Year’s fireworks but went to the basement and turned his music up.  He was able to avoid altercations with his wife’s family.  The Veteran was pleasant, cooperative, had good grooming/hygiene, and good eye contact.  His speech and motor were within normal limits.  The Veteran’s affect was bright and reactive.  Thought process was linear, coherent.  The Veteran did not have suicidal or homicidal ideation and no auditory or visual hallucinations.  His insight and judgement were good.

Finally, according to a PTSD DBQ, dated January 4, 2017, a psychologist confirmed the Veteran’s diagnosis of PTSD and determined the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, and/or mood.  The psychologist stated the Veteran’s symptoms included depressed mood; anxiety; suspiciousness; panic attacks more than one a week; 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; impairment of short- and long-term memory; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work-like settling; inability to establish and maintain effective relationships; persistent delusions or hallucinations; neglect of personal appearance and hygiene; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene.

The psychologist stated the Veteran “detailed great ongoing difficulty with his symptom pattern” and can no longer enjoy the simplest of activities.  The Veteran’s attention was normal, and concentration appeared variable.  He reported increased trouble with short- and long-term memory as he struggled to remember basic information.  His speech flow was normal, although he was “brief with information offered.”  The psychologist stated that “[o]n this day, thought content is appropriate for the circumstances.  Organization of thought is goal directed.  There was report of over hallucinations.”  His mood was anxious and nervous, his affect was restricted.  He stated he felt anxious and depressed, “[i]n fact, on this day he endorsed symptomology of PTSD, as he is vague with response, suspicious and seem[ed] rather vigilant when speaking with this examiner.  He seem[ed] cautious of this important interaction this day.  He is insecure and unsure of himself over the course of this social interaction.” 

Upon thorough review of the record, the Board finds that the aforementioned lay and medical evidence reflects that the Veteran’s symptoms during the period prior to January 4, 2017, do not warrant a rating in excess of 50 percent. 

Prior to January 4, 2017, the Veteran’s PTSD, was characterized by the following signs or symptoms: depressed mood; anxiety; sleep impairment; a negative emotional state; markedly diminished interest or participation in significant activities; and irritable behavior.  The Board finds that these symptoms are similar to many of those contemplated by the currently assigned 50 percent rating.  However, despite several periods of depressed mood and stress, the record reflects the Veteran was generally able to manage his moods, attitudes, impulses, and maintained relationships with his family. 

While the Veteran’s PTSD did cause some occupational and social impairment, deficiencies in most areas were not shown. 

With regards to family and social relations, the Board recognizes periods where the Veteran isolated himself and withdrew from people. The Veteran and his wife also experienced struggles in their marriage including using separate bedrooms. However, the totality of the evidence demonstrates that the Veteran was able to maintain effective relationships with his family and he reported his relationship with his wife improved as they were separate.  He reported maintaining a relationship with his son, enjoyed being with his granddaughter, and helped a friend repair a truck.  Therefore, the evidence weighs against a finding of deficiencies in family and social relations equating to a 70 percent or higher rating. 

Overall, prior to January 4, 2017, symptoms indicative of a 70 percent rating such as; 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and the inability to establish and maintain effective relationships have not been shown or approximated. 

The Board acknowledges that the list of symptoms supporting a 70 percent rating is not exhaustive.  See Mauerhan at 442-43.  However, even when considering the actual symptoms shown during this appeal, the evidence fails to show occupational and social deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood for the reasons set forth above.  Accordingly, and based on the evidence of record, the Board concludes that the totality of the evidence shows that the criteria for a rating in excess of 50 percent for the Veteran’s PTSD prior to January 4, 2017, have not been met or approximated.

As such, the evidence supports a finding that the Veteran’s actual PTSD symptomatology and resulting occupational and social impairment are adequately compensated for by the assigned 50 percent rating, for the period of appeal prior to January 4, 2017. 

From January 4, 2017, however, the Board finds that a 100 percent disability rating for the Veteran’s PTSD is warranted.  According to the April 2018 rating decision, the RO determined the Veteran’s PTSD was 100 percent disabling based on the January 4, 2017, VA PTSD DBQ and assigned an effective date of March 22, 2018, as it was received on his date.  The Board however, finds that the DBQ revealing an increase in severity of the Veteran’s symptoms was in fact dated January 4, 2017 and therefore, the proper effective date of the 100 percent disability rating should be January 4, 2017.  

The Board notes that while January 4, 2017 DBQ presented inconsistent findings compared to the history of the Veteran’s symptoms as reflected in the VA treatment records leading up to date of this DBQ (to include the January 3, 2017, VA treatment record that did not demonstrate a level of severity of the Veteran’s PTSD symptomatology to warrant a disability rating higher than 50 percent), the Board has resolved reasonable doubt in the Veteran’s favor and assigns a 100 percent evaluation, effective January 4, 2017.

Accordingly, the Board finds that prior to January 4, 2017, a disability rating in excess of 50 percent for PTSD is not warranted but that from January 4, 2017, a 100 percent evaluation is warranted.  Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

6. TDIU

VA will grant a total rating for compensation purposes based on individual unemployability when the evidence shows that a veteran is precluded, due to service-connected disability, from obtaining or maintaining any form of gainful employment consistent with his or her education and occupational experience.  See 38 C.F.R. §§ 3.340, 3.341, 4.16.  Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of substantially gainful employment. 

If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability.  If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16.  Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation due to service-connected disability, and consideration is given to the veteran’s background including his or her employment and educational history.  38 C.F.R. § 4.16(b).  The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance.  See Bowling v. Principi, 15 Vet. App. 1 (2001). 

In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2018).

The Board finds that the Veteran met the schedular criteria requirements under 38 C.F.R. § 4.16(a) beginning February 10, 2015.  Specifically, the Veteran is service connected for PTSD at a 50 percent disability rating from March 30, 2012, and 100 percent from January 4, 2017; headaches associated with PTSD at a 50 percent disability rating from February 10, 2015; a scar of the right temporal wound at a noncompensable rating from March 30, 2012, and 10 percent from August 7, 2014; tinnitus at a 10 percent disability rating from February 10, 2015; a shrapnel wound of the right forearm at a noncompensable rating from March 30, 2012; scars of the radial and volar aspect of the proximal right forearm at a noncompensable rating from March 30, 2012; and hearing loss of the left ear at a noncompensable rating from February 10, 2015. .  Therefore, beginning February 10, 2015, the Veteran had multiple disabilities ratable at a combined evaluation of 80 percent.  As such, the Board finds that the minimum schedular criteria for TDIU are met as of February 10, 2015.

After a review of all the evidence, the Board concludes that the evidence indicates the Veteran’s disabilities alone are of sufficient severity to produce unemployability.  The Veteran has asserted he was last employed in June 2011 when he retired as a truck driver.  He has stated he is unable to be employed due to the frequency and severity of his service-connected disabilities to include PTSD.

According to the psychologist who conducted the January 2017 PTSD DBQ, the Veteran “cannot sustain the stress from a competitive work environment or expected to engage in gainful activity due to his PTSD.”  As the Veteran is unable to get restful sleep and felt fatigue nearly every day,“this would be a safety issue in the workplace.”  The Veteran had “difficulty remembering events, requests and occasionally forgetting details or sequencing that would affect his employment.”  He had difficulty maintaining and sustaining a steady mood” which would lead to problems in his social and work life.  He felt nervous and worried and continued to struggle with ongoing anxiety issues.  The Veteran was assigned a 40 percent rating for his headaches associated with PTSD, effective February 10, 2015.  This rating was based on a February 2017 headaches DBQ which indicated the Veteran would not be able to maintain substantially gainful employment due to the amount of frequent unscheduled breaks and work missed.  Viewed in a light most favorable to the Veteran, the Board, thus, concludes that the Veteran’s PTSD and headaches precluded substantially gainful employment from February 10, 2015.  Accordingly, entitlement to TDIU is granted, effective February 10, 2015.  

The period prior to February 10, 2015, will be discussed in the REMAND section below.

REASONS FOR REMAND

Unfortunately, a remand is required in this case.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s remaining claims so that he is afforded every possible consideration.  VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  38 U.S.C. §§ 5107(a), 5103A (2012); 38 C.F.R. § 3.159(c) (2018).

VA has a duty to assist claimants to obtain evidence needed to substantiate a claim.  See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018).  VA’s duty to assist includes providing a medical examination when necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology).

1. Entitlement to service connection for a left leg condition 

2. Entitlement to service connection for a right leg condition 

The Veteran claim he has bilateral leg conditions which stemmed from his military service.  

According to the Veteran’s service treatment records, in March 1971 right knee pain and strain on the left knee was noted. 

The post-treatment records indicate the Veteran reported pain in both knees; however, he was diagnosed with pseudogout in the right knee.  Despite the complaints of left knee pain, there is no diagnosis of a left knee disability.  

Here, given the Veteran’s report of ongoing symptomatology, a diagnosis of right knee pseudogout, knee treatment during service, the Board finds that there is insufficient competent medical evidence on file to make a decision on these issues and must therefore remand to obtain an examination and medical nexus opinion regarding the etiology of the claimed disabilities.  Thus, this claim should be remanded for a VA examination to clarify the Veteran’s diagnosis and obtain an adequate etiological opinion.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

 



3. Entitlement to service connection for a left foot condition 

4. Entitlement to service connection for a right foot condition 

The Veteran contends that he has a current bilateral foot condition that is related to his military service. 

According to the Veteran’s entrance examination December 1968, abnormal feet were noted as asymptomatic pes planus.

VA treatment records reveal the Veteran reported right foot coldness and with pain in the foot and heel.  Minor calcaneal spurring in the right foot was revealed in imaging, dated January 2013.  In July 2016, right plantar fasciitis was noted.  The Veteran’s left foot was diagnosed with hallux rigidus and in January 2016 it was noted that it was related to his right knee as he was favoring his left foot. 

The Board finds that additional development is needed on these issues prior to adjudication for several reasons.  First, as the December 1968 entrance examination indicated asymptomatic pes planus, the presumption of soundness does not apply.  38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2018).  As such, the question becomes whether the disorder was aggravated by, rather than incurred in, active service.  See 38 U.S.C. §§ 1111, 1153; 38 C.F.R. §§ 3.304, 3.306.  Therefore, a remand is warranted to obtain a VA examination addressing this question. 

As pes planus can be congenital in nature, the opinion obtained on remand should also address whether it is considered a congenital defect or disease. If the disorder is a congenital defect, the examiner must opine as to whether there was a superimposed disease or injury during service that resulted in additional disability. See VAOPGCPREC 82-90 (July 18, 1990); see also Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009).

Furthermore, given the January 2016 indication that the Veteran’s left foot pain was related to a right knee condition, an opinion is needed as to whether any current diagnosed left foot condition is related to a right leg/knee condition. 

Given the diagnosis of pes planus of the feet at entrance into service, the various disabilities identified separately in the left foot and right foot, the Board finds a new VA examination is necessary to clarify any diagnosis of disability of the feet (and whether it is separate from the Veteran’s bilateral pes planus) and provide an etiological opinion.   See McLendon, 20 Vet. App. at 79.

5. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure 

The Board acknowledges that the Veteran’s military service included combat service in Vietnam.  Accordingly, the evidence shows that the Veteran had service in the Republic of Vietnam during the Vietnam era and exposure to an herbicide agent is conceded.  38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii).

In August 2013, the Veteran was afforded a VA Diabetes Mellitus DBQ where it was determined the Veteran did not meet the criteria for a diagnosis of diabetes. 

According to the Veteran’s post-service treatment records, in September 2018, it was noted the Veteran was pre-diabetic but also indicated it was “very well controlled.”  However, the Veteran stated in June 2018, that he was told he had diabetes.  In addition, there is a note in the VA treatment records that the Veteran may have been diagnosed with non-insulin dependent diabetes mellitus in January 2018.  As such, it is unclear to the Board whether the Veteran has a current diagnosis of diabetes mellitus. 

Given the Veteran’s confirmed exposure to herbicide during service in Vietnam, the Board finds he should be afforded a VA examination in order to clarify the diagnosis of this disability.  See McLendon, 20 Vet. App. at 79.

 



6. Entitlement to service connection for peripheral neuropathy of the left lower extremity, associated with diabetes mellitus, type II

7. Entitlement to service connection for peripheral neuropathy of the right lower extremity, associated with diabetes mellitus, type II

There is no indication within the record that the Veteran has a diagnosis of peripheral neuropathy.  However, the Veteran reported burning, numbness and tingling in the bilateral lower extremities as shown in the VA treatment records dated March 2018 and June 2018.  According to a May 2014 Agent Orange Peripheral Neuropathy Review Checklist, it was opined that the Veteran did not have a diagnosis of peripheral neuropathy during service and post-service, nor did the Veteran have this condition within one year of last exposure.  However, there is no indication that the Veteran’s lay statements of symptomatology were considered or whether such disorder was secondary to possible diabetes mellitus, type II. 

As such, the Board finds that these issues are “inextricably intertwined” with the issue of entitlement to service connection for diabetes mellitus, type II, and they must be decided together.  See Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009).

Currently, there is no opinion addressing whether these conditions are secondary to his diabetes mellitus, type II.  Therefore, due to the lack of an adequate examination opinion, the Veteran should undergo a VA examination to clarify the etiology of the disabilities.  38 C.F.R. § 3.159(c)(4) (2018); Green v. Derwinski, 1 Vet. App. 121 (1991) (duty to assist may include conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one).

As the Veteran is presumed to have been exposed to herbicides in the Republic of Vietnam during the Vietnam era, early onset peripheral neuropathy is presumptively service connected if manifest to a compensable degree within one year of herbicide exposure.  38 C.F.R. § 3.307(a)(6)(ii).  As such, the Board finds remand is warranted for a VA examination to clarify whether the Veteran has a diagnosis of early onset peripheral neuropathy of the lower extremities and whether it is etiologically related to his military service, namely exposure to Agent Orange.  See McLendon, 20 Vet. App. at 79.

8. Entitlement to service connection for erectile dysfunction, associated with diabetes mellitus, type II

The Veteran contends that his erectile dysfunction is caused by diabetes mellitus type II. 

According to the August 2013 VA Diabetes Mellitus DBQ, the Veteran experienced erectile dysfunction since 1973 and as the erectile dysfunction “predated the onset of borderline diabetes by 38 years” it was unrelated. 

The VA examiner, however, did not provide an aggravation opinion as to whether the Veteran’s erectile dysfunction was aggravated by diabetes mellitus, type II.  As stated above, the question of whether the Veteran has a diagnosis of diabetes mellitus, type II, is subject to additional development in this remand.    

As this issue is “inextricably intertwined” with the issue of entitlement to service connection for diabetes mellitus, type II, and they must be decided together.  See Tyrues, 23 Vet. App. at 178.

Therefore, the Board finds that a remand is necessary for a VA medical opinion to clarify the diagnosis of erectile dysfunction and opine as to whether or not the Veteran’s erectile dysfunction is aggravated by diabetes mellitus, type II, if a diagnosis of this disability is confirmed.  See McLendon, 20 Vet. App. at 79.

9. Entitlement to service connection for a thyroid condition, associated with diabetes mellitus, type II

The Veteran contends that his thyroid condition stemmed from his diabetes mellitus type II.  As discussed in prior issues on appeal in this remand, the question of whether the Veteran has a diagnosis of diabetes mellitus, type II, is subject to additional development in this remand.    

As the issue of service connection for a thyroid disorder is “inextricably intertwined” with the issue of entitlement to service connection for diabetes mellitus, type II, and they must be decided together.  See Tyrues, 23 Vet. App. at 178.

According to the August 2013 VA Diabetes Mellitus DBQ, the Veteran had no history of thyroid disease and there was no mention of a thyroid abnormality in his records.  The VA examiner noted that thyroid panels from 2011 and 2012 were both normal.  Consequently, it was determined that the Veteran did not have a current disability of the thyroid and even if he did, there was no clinical relation to diabetes. 

However, a VA treatment record, dated November 2017, indicates a palpated thyroid nodule was biopsied where the fluid was benign.  

Given this information, the Board finds that clarification is warranted as to whether the Veteran has a current thyroid condition and, if the Veteran has a confirmed diagnosis of diabetes mellitus, type II, whether any diagnosed thyroid condition is secondary to, or aggravated by, diabetes mellitus, type II.  Therefore, a VA examination and opinion are warranted.  See McLendon, 20 Vet. App. at 79.

10. Entitlement to service connection for diabetic retinopathy, associated with diabetes mellitus, type II

The Veteran claims he has a diagnosis of diabetic retinopathy, associated with diabetes mellitus, type II. 

As this issue is “inextricably intertwined” with the issue of entitlement to service connection for diabetes mellitus, type II, and they must be decided together.  See Tyrues, 23 Vet. App. at 178.

According to the August 2013 rating decision, the Veteran was denied service connection for this condition as he did not have a current diagnosis of this condition.  This decision was confirmed in a February 2017 Statement of the Case.

The Board finds, however, that according to a July 2018 VA treatment record, a notation was made by a VA optometrist that may indicate the Veteran has a diagnosis of non-insulin dependent diabetes mellitus and diabetic retinopathy, bilaterally.  Therefore, clarification of whether the Veteran has a diagnosis of diabetic retinopathy and if so, whether it is secondary to, or aggravated by, diabetes mellitus is needed.  See McLendon, 20 Vet. App. at 79.

11. Entitlement to TDIU prior to February 10, 2015 

As adjudicated in this decision, the Board has granted the Veteran TDIU from February 10, 2015.  

Regarding entitlement to TDIU prior to February 10, 2015, a remand is required as the issue is inextricably intertwined with remanded issues.  Issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  

As discussed above, TDIU is assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  38 C.F.R. § 4.16(b).  Because the Board is remanding the above claims for an increased evaluation, and as the issue of entitlement to service connection for sleep apnea, as secondary to the service-connected PTSD, was granted in this decision (for which a disability rating has not yet been assigned), a remand is required because the TDIU issue is inextricably intertwined with the resolution of these appeals in this remand.

The Veteran’s statements as well as the evidence of record raise a question as to whether his claim for TDIU prior to February 10, 2015, should be referred for extraschedular evaluation under 38 C.F.R. § 4.16(b).  In Floyd v. Brown, 9 Vet. App. 88 (1996), the Court held that the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, “the regulation does not preclude the Board from considering whether referral to the appropriate first-line officials is required.”  Id. at 95.  In light of the foregoing, the Veteran’s claim for TDIU prior to February 10, 2015, is being remanded so that it may be referred to the Director, Compensation Service, for extraschedular consideration.

Finally, ongoing medical records should also be obtained.  38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim).

The matters are REMANDED for the following action:

1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment.  If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file.  Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative.

2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records.  Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file.  All information obtained must be made part of the file.  All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative.

3. Once all outstanding records, if any, have been obtained and associated with the record, schedule the Veteran for a VA examination before an appropriate clinician to determine the nature and etiology of any diagnosed left leg condition.  The Veteran’s claims file must be made available to and reviewed by the VA examiner, who must state in his/her report that such was reviewed in conjunction with this examination. 

Thereafter, the VA examiner must present the diagnosis or diagnoses, if any, that specifically describe(s) any disabling condition affecting the Veteran’s left leg.

The VA examiner should then provide nexus opinions, presented in the context of the medical record, with complete supportive rationales, addressing the following questions:

a.	Does the Veteran have a diagnosed left leg condition, to include the left knee, separate from any peripheral neuropathy condition? 

b.	If so, then, is it at least as likely as not (50 percent or greater probability) that the diagnosed left leg condition had its/their onset during active military service or is/are otherwise related thereto, include whether caused or aggravated by any service-connected disability.

Any further indicated tests and studies deemed warranted should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.  Additionally, the VA examiner should consider and comment on the Veteran’s service treatment records (namely, strain on the left knee noted in March 1971), VA treatment records, and private treatment records.  All opinions expressed by the examiner should be accompanied by a complete, clear rationale, with citation to relevant medical findings.  Furthermore, the VA examiner should also discuss the Veteran’s lay statements regarding history and chronicity of symptomatology when discussing the offered opinions.

If the VA examiner cannot provide an opinion without resorting to mere speculation, he/she shall provide a complete explanation stating why this is so.  In so doing, the VA examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he/she has exhausted the limits of current medical knowledge in providing an answer to the particular question.

4. Once all outstanding records, if any, have been obtained and associated with the record, schedule the Veteran for a VA examination before an appropriate clinician to determine the nature and etiology of any diagnosed right leg condition, to include right knee pseudogout.  The VA examiner must determine whether the Veteran has a right leg condition separate from any peripheral neuropathy condition.  The Veteran’s claims file must be made available to and reviewed by the VA examiner, who must state in his/her report that such was reviewed in conjunction with this examination. 

The VA examiner should address each diagnosed right leg/knee condition and opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder is of service onset or is otherwise related to the Veteran’s active service, to include whether it is caused or aggravated by a service-connected disability. 

Any further indicated tests and studies deemed warranted should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.  Additionally, the VA examiner should consider and comment on the Veteran’s service treatment records (namely the March 1971 treatment record indicating pain in the right knee), VA treatment records, and private treatment records.  All opinions expressed by the examiner should be accompanied by a complete, clear rationale, with citation to relevant medical findings.  Furthermore, the VA examiner should also discuss the Veteran’s lay statements regarding history and chronicity of symptomatology when discussing the offered opinions.

If the VA examiner cannot provide an opinion without resorting to mere speculation, he/she shall provide a complete explanation stating why this is so.  In so doing, the VA examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he/she has exhausted the limits of current medical knowledge in providing an answer to the particular question.

5. Once all outstanding records, if any, have been obtained and associated with the record, schedule the Veteran for a VA examination before an appropriate clinician to determine the nature and etiology of his bilateral pes planus and any diagnosed foot disorder (other than pes planus), to include minor calcaneal spurring, plantar fasciitis in the right foot and hallux rigidus in the left foot.  The Veteran’s claims file must be made available to and reviewed by the VA examiner, who must state in his/her report that such was reviewed in conjunction with this examination. 

Regarding the Veteran’s pes planus, the VA examiner should address the following:

a. The examiner should explain whether it is a congenital or developmental disease, a congenital or developmental defect, or a disorder not of congenital or developmental origin.

The examiner should note that a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating.

b. If the pes planus is determined to be a congenital or developmental defect, opine as to whether it is at least as likely as not (50 percent or greater probability) that there was a superimposed disease or injury that occurred during service and resulted in additional disability.

c. If the pes planus is determined to be a congenital or developmental disease or a disorder not of congenital/developmental origin, opine as to whether there is clear and unmistakable evidence that the pes planus was not aggravated (permanently worsened beyond the normal progress of the disease) by the Veteran’s active service.

d. If the examiner determines that the pes planus was aggravated by the Veteran’s active service, the examiner should render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the aggravation in service is related to his current pes planus.  The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as appropriate.

e. Regarding the Veteran’s left foot condition and right foot condition, the VA examiner should address whether each diagnosed disorder other than pes planus, to include minor calcaneal spurring, plantar fasciitis in the right foot and hallux rigidus in the left foot, is at least as likely as not (50 percent or greater probability) that such disorder was incurred in or is otherwise related to the Veteran’s active service, include whether it is caused or aggravated by a service-connected disability.

Any further indicated tests and studies deemed warranted should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.  Additionally, the VA examiner should consider and comment on the Veteran’s service treatment records, VA treatment records, and private treatment records.  All opinions expressed by the examiner should be accompanied by a complete, clear rationale, with citation to relevant medical findings.  Furthermore, the VA examiner should also discuss the Veteran’s lay statements regarding history and chronicity of symptomatology when discussing the offered opinions.

If the VA examiner cannot provide an opinion without resorting to mere speculation, he/she shall provide a complete explanation stating why this is so.  In so doing, the VA examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he/she has exhausted the limits of current medical knowledge in providing an answer to the particular question.

6. Once all outstanding records have been obtained and associated with the claims file, afford the Veteran a VA examination with an appropriate examiner in order to determine the presence of the Veteran’s claimed diabetes mellitus, type II.  The Veteran’s claims file must be made available to and reviewed by the VA examiner, who must state in his/her report that such was reviewed in conjunction with this examination.

The VA examiner should identify if there is a diagnosis of diabetes mellitus, type II.

Any further indicated tests and studies deemed warranted should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.  Additionally, the VA examiner should consider and comment on the Veteran’s service treatment records, VA treatment records (including a VA treatment note that the Veteran was diagnosed with non-insulin dependent diabetes mellitus in January 2018), and private treatment records.  All opinions expressed by the examiner should be accompanied by a complete, clear rationale, with citation to relevant medical findings.  Furthermore, the VA examiner should also discuss the Veteran’s lay statements regarding history and chronicity of symptomatology when discussing the offered opinions.

If the VA examiner cannot provide an opinion without resorting to mere speculation, he/she shall provide a complete explanation stating why this is so.  In so doing, the VA examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he/she has exhausted the limits of current medical knowledge in providing an answer to the particular question.

7. Once all outstanding records have been obtained and associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed peripheral neuropathy of the bilateral lower extremities, to include as secondary to diabetes mellitus, type II, and/or Agent Orange exposure.  The entire claims file must be made available to the examiner designated to examine the Veteran, and the examination report should include discussion of the Veteran’s documented medical history and assertions. 

After examining the Veteran and reviewing the relevant evidence in the claims file, the examiner should clarify the condition of peripheral neuropathy of the left and right lower extremities.  With respect to any such diagnosis, the VA examiner should offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (50 percent or greater probability) that such condition had its onset in service or is otherwise related to a disease or injury due to active duty service, to include as secondary to, or aggravated by, diabetes mellitus, type II, if diagnosed.

The examiner is also asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s peripheral neuropathy is early onset and manifested to a compensable degree within one year of the Veteran’s herbicide exposure.  

Any further indicated tests and studies deemed warranted should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.  Additionally, the VA examiner should consider and comment on the Veteran’s service treatment records, VA treatment records (including those dated March 2018 and June 2018 indicating complaints of burning, numbness and tingling in the bilateral lower extremities), and private treatment records.  All opinions expressed by the examiner should be accompanied by a complete, clear rationale, with citation to relevant medical findings.  Furthermore, the VA examiner should also discuss the Veteran’s lay statements regarding history and chronicity of symptomatology when discussing the offered opinions.

If the VA examiner cannot provide an opinion without resorting to mere speculation, he/she shall provide a complete explanation stating why this is so.  In so doing, the VA examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he/she has exhausted the limits of current medical knowledge in providing an answer to the particular question.

8. Once all outstanding records have been obtained and associated with the claims file, schedule the Veteran for a VA examination with an appropriate specialist to clarify whether the Veteran has a diagnosis of erectile dysfunction and, if erectile dysfunction is diagnosed, to address its etiology, to include as secondary to diabetes mellitus, type II.  The electronic claims file must be made available to, and pertinent documents therein reviewed by, the examiner.  The examiner must note such review in the examination report. 

Based upon a review of the relevant evidence of record and an examination of the Veteran, the VA examiner is asked to offer the following opinions:

a.	Is it at least as likely as not (50 percent or greater probability) that the Veteran’s erectile dysfunction was (i) caused or (ii) aggravated by diabetes mellitus, type II, (if diagnosed)? 

b.	If the opinion is that the diabetes mellitus, type II, aggravated the erectile dysfunction, the VA examiner should specify, so far as possible, the degree of disability resulting from such aggravation.

Any further indicated tests and studies deemed warranted should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.  Additionally, the VA examiner should consider and comment on the Veteran’s service treatment records, VA treatment records (to include the August 2013 DBQ), and private treatment records.  All opinions expressed by the examiner should be accompanied by a complete, clear rationale, with citation to relevant medical findings.  Furthermore, the VA examiner should also discuss the Veteran’s lay statements regarding history and chronicity of symptomatology when discussing the offered opinions.

If the VA examiner cannot provide an opinion without resorting to mere speculation, he/she shall provide a complete explanation stating why this is so.  In so doing, the VA examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he/she has exhausted the limits of current medical knowledge in providing an answer to the particular question.

9. Once all outstanding records have been obtained and associated with the claims file, schedule the Veteran for a VA examination with an appropriate specialist to clarify whether the Veteran has a diagnosis of a thyroid condition and, if a thyroid condition is diagnosed, to address its etiology, to include as secondary to diabetes mellitus, type II.  The electronic claims file must be made available to, and pertinent documents therein reviewed by, the examiner.  The examiner must note such review in the examination report. 

Based upon a review of the relevant evidence of record and an examination of the Veteran, the VA examiner is asked to offer the following opinions:

a.	Is it at least as likely as not (50 percent or greater probability) that the Veteran’s thyroid condition was (i) caused or (ii) aggravated by diabetes mellitus, type II, (if diagnosed)? 

b.	If the opinion is that the diabetes mellitus, type II, aggravated the thyroid condition, the VA examiner should specify, so far as possible, the degree of disability resulting from such aggravation.

Any further indicated tests and studies deemed warranted should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.  Additionally, the VA examiner should consider and comment on the Veteran’s service treatment records, VA treatment records (to include the August 2013 DBQ and the November 2017 VA treatment record indicating treatment for a palpated thyroid nodule), and private treatment records.  All opinions expressed by the examiner should be accompanied by a complete, clear rationale, with citation to relevant medical findings.  Furthermore, the VA examiner should also discuss the Veteran’s lay statements regarding history and chronicity of symptomatology when discussing the offered opinions.

If the VA examiner cannot provide an opinion without resorting to mere speculation, he/she shall provide a complete explanation stating why this is so.  In so doing, the VA examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he/she has exhausted the limits of current medical knowledge in providing an answer to the particular question.

10. Once all outstanding records have been obtained and associated with the claims file, schedule the Veteran for a VA examination with an appropriate specialist to clarify whether the Veteran has a diagnosis of diabetic retinopathy and, if it is diagnosed, to address its etiology, to include as secondary to diabetes mellitus, type II.  The electronic claims file must be made available to, and pertinent documents therein reviewed by, the examiner.  The examiner must note such review in the examination report. 

Based upon a review of the relevant evidence of record and an examination of the Veteran, the VA examiner is asked to offer the following opinions:

a.	Is it at least as likely as not (50 percent or greater probability) that the Veteran has diabetic retinopathy that was (i) caused or (ii) aggravated by diabetes mellitus, type II, (if diagnosed)? 

b.	If the opinion is that the diabetes mellitus, type II, aggravated diabetic retinopathy (if diagnosed), the VA examiner should specify, so far as possible, the degree of disability resulting from such aggravation.

Any further indicated tests and studies deemed warranted should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.  Additionally, the VA examiner should consider and comment on the Veteran’s service treatment records, VA treatment records (to include the July 2018 VA treatment record indicating a VA optometrist’s assessment of non-insulin dependent diabetes mellitus and diabetic retinopathy, bilaterally), and private treatment records.  All opinions expressed by the examiner should be accompanied by a complete, clear rationale, with citation to relevant medical findings.  Furthermore, the VA examiner should also discuss the Veteran’s lay statements regarding history and chronicity of symptomatology when discussing the offered opinions.

If the VA examiner cannot provide an opinion without resorting to mere speculation, he/she shall provide a complete explanation stating why this is so.  In so doing, the VA examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he/she has exhausted the limits of current medical knowledge in providing an answer to the particular question.

11. Following the completion of all the remand instructions above, if the criteria for a schedular TDIU prior to February 10, 2015, are not met, refer the issue of entitlement to a TDIU on an extraschedular basis to the 

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Director of Compensation Service pursuant to 38 C.F.R. § 4.16(b).



 

BARBARA B. COPELAND

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	H. Yoo, Counsel