Citation Nr: 20006533 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 18-44 052 DATE: January 28, 2020 ORDER New and material evidence having not been received, the Veteran’s claim for entitlement to service connection for irritable bowel syndrome is not reopened. Entitlement to service connection for blood clots, to include pulmonary embolisms, is denied. Entitlement to a rating in excess of 20 percent disabling for service-connected fibromyalgia (also claimed as insomnia and chronic fatigue syndrome), for the period June 11, 2012 to June 11, 2013, is denied Entitlement to a rating in excess of 40 percent disabling for service-connected fibromyalgia (also claimed as insomnia and chronic fatigue syndrome), for the period beginning June 11, 2013, is denied. Entitlement to an effective date prior to June 11, 2013 for the grant of service connection for unspecified depressive disorder and somatic symptom disorder is denied. Entitlement to an effective date prior to June 11, 2013 for the increased evaluation of 40 percent disabling for service-connected fibromyalgia is denied. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) (also claimed as anxiety) is remanded. Entitlement to a rating in excess of 10 percent disabling for service-connected unspecified depressive disorder and somatic symptom disorder is remanded. FINDINGS OF FACT 1. In a final decision issued in September 2005, the RO continued to deny the claim for service connection for irritable bowel syndrome. 2. Evidence added to the record since the final September 2005 denial is cumulative or redundant of the evidence of record at the time of the prior decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for irritable bowel syndrome. 3. Blood clots to include pulmonary embolisms, are not shown to be causally or etiologically related to any disease, injury, or incident in service to include any exposure in Southwest Asia and did not manifest to a compensable degree within one year of the Veteran’s discharge from service. 4. For the period June 11, 2012 to June 11, 2013, the Veteran’s fibromyalgia most nearly approximated widespread musculoskeletal pain and tender points, with associated fatigue, and other associated symptoms that are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time, without more severe manifestations. 5. For the period beginning June 11, 2013, the Veteran’s fibromyalgia most nearly approximated musculoskeletal pain and tender points, with associated fatigue, and other associated symptoms that are constant, or nearly so, and refractory to therapy; furthermore, the Veteran is in receipt of a 40 percent rating, the schedular maximum under Diagnostic Code 5025 and factors warranting extraschedular consideration are neither alleged nor shown by the record. 6. A March 1996 rating decision denied the Veteran’s claim for depression as the RO found no clinical diagnosis of depression; while the Veteran filed an appeal of the decision, it was also denied by the Board in a December 1999 decision, as the Board also found no clinical evidence of a diagnosis of depression. The Board decision is final. 7. Since that denial, the first communication from the Veteran to VA evidencing intent to reopen service connection for depression was received on June 11, 2013. 8. In a September 2005 rating decision, the RO granted the Veteran’s claim for fibromyalgia and assigned a 20 percent disability rating effective May 28, 2002. The Veteran did not appeal that decision, and no new and material evidence was received within one year of receiving written notice of the decision. The decision therefore became final. 9. Following the September 2005 final rating decision, there was no formal or informal claim for an increased rating for the Veteran’s fibromyalgia prior to the June 11, 2013 informal claim. 10. In a July 2014 rating decision, the RO granted an increased rating of 40 percent for the Veteran’s fibromyalgia, effective June 11, 2013, the date the Veteran’s claim for increase was received. 11. Previously assigned effective dates for the award of service connection for unspecified depressive disorder with somatic symptoms and 40 percent disability rating for service-connected fibromyalgia are correct. CONCLUSIONS OF LAW 1. The September 2005 rating decision that continued to deny the Veteran’s claim of entitlement to service connection for irritable bowel syndrome is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for irritable bowel syndrome. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for blood clots, to include pulmonary embolisms have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. For the period from June 11, 2012 to June 11, 2013, the criteria for a rating in excess of 20 percent disabling for service-connected fibromyalgia are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5025. 5. For the period beginning June 11, 2013, the criteria for a rating in excess of 40 percent disabling for service-connected fibromyalgia are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5025. 6. The criteria for an effective date prior to June 11, 2013, for the award of service connection for unspecified depressive disorder with somatic symptoms have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 7. The criteria for an effective date prior to June 11, 2013 for an increased rating of 40 percent disabling for service-connected fibromyalgia have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.400, 3.400(o). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1984 to August 1984, October 1986 to February 1987, and October 1990 to May 1991. The Board notes that the Veteran submitted a VA Form 21-22a (Appointment of Individual as Claimant’s Representative) in August 2014 appointing J. Michael Woods, Esq. as his representative. In March 2019, the Veteran submitted a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative) appointing Disabled American Veterans (DAV) as his representative. Accordingly, the Board recognizes DAV as the Veteran’s representative in the current appeal. Petition to Reopen and Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 (b) and (c); 38 C.F.R. §§ 3.160 (d), 20.200, 20.201, 20.202, and 20.302(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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 (a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). New and material evidence having not been received, the Veteran’s claim for entitlement to service connection for irritable bowel syndrome is not reopened. The Veteran initially claimed entitlement to service connection for irritable bowel syndrome in May 2003, which was denied in a decision issued in February 2004. At the time of the February 2004 decision, the RO considered the Veteran’s service treatment records as well as post-service treatment records, a social security decision, and a September 1995 VA examination. The RO found that the record did not show a clinical diagnosis for the Veteran’s claimed condition and that the claimed condition had not been incurred in service. In this regard, the Veteran’s service treatment records are negative for complaints, treatment, or diagnoses referable to irritable bowel syndrome, and while bowel symptoms had been reported post-service, there was no clinical diagnosis and nothing connecting the Veteran’s symptoms to service. Therefore, the claim was denied. The Veteran filed a petition to reopen his claim for service connection for irritable bowel syndrome in June 2005, which was denied in a decision issued in September 2005. At the time of the September 2005 decision, the RO considered the evidence of record at the time of the February 2004 decision as well as additional VA treatment records, and a July 2005 VA examination. The RO found that the evidence submitted since the February 2004 decision was not new and material as there was still no evidence of a clinical diagnosis of irritable bowel syndrome and therefore the issue remained denied. The Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection for irritable bowel syndrome was received until June 2013, when VA received his application to reopen such claim. Therefore, the September 2005 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156 (b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran’s claim for service connection for irritable bowel syndrome was received prior to the expiration of the appeal period stemming from the September 2005 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). The evidence received since the September 2005 rating decision includes additional treatment records and lay statements. However, while such records document treatment for a variety of conditions, they do not reflect any diagnosis of irritable bowel syndrome or any findings which relate such a condition to the Veteran’s active duty service. Additionally, while the Veteran has submitted statements regarding the onset and continuity of symptoms associated with his claimed irritable bowel syndrome during the course of the appeal, such are duplicative of his contentions that were previously of record at the time of the September 2005 rating decision. Specifically, he simply continues to contend that his claimed condition is the result of his service. Therefore, the Board finds that the evidence received since the September 2005 rating decision is cumulative or redundant of the evidence of record at the time of the prior decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of service connection for irritable bowel syndrome. Consequently, new and material evidence has not been received to reopen such claim and the Veteran’s appeal must be denied. Entitlement to service connection for blood clots, to include pulmonary embolisms, is denied. The Veteran contends that he has blood clots to include pulmonary embolisms, which he contends are the result of his active service, to include alleged exposure to sarin gas in Southwest Asia. The Veteran’s service treatment records are silent for any complaints, treatment or diagnosis of blood clots. Furthermore, the Veteran’s separation examination was silent for any complaints associated with blood clots. However, post-service treatment records reflect that the Veteran was diagnosed with pulmonary embolisms on October 31, 2010 and again in 2015. Throughout the appeal, the Veteran has undergone numerous VA examinations, however in May 2018 he underwent an examination specifically to determine the likely nature and etiology of his claimed blood clot condition, to include pulmonary embolisms. During the May 2018 VA Respiratory examination, which included an associated disability benefits questionnaire (DBQ), the examiner noted that the Veteran had a history of pulmonary embolisms in 2010 and 2015. The examiner noted that the Veteran was started on Warfarin which was discontinued in January 2013. However, with the reoccurrence of an unprovoked pulmonary embolism in 2015, it was recommended that the Veteran take anticoagulants indefinitely. The Veteran reported that he was exposed to sarin nerve gas while on active duty and that such exposure caused his blood clots. After a thorough review of the Veteran’s record and examination of the Veteran, the examiner noted that a pulmonary embolism is a disease with a clear and specific etiology and diagnosis. Furthermore the examiner found that as the Veteran’s first pulmonary embolism occurred 19 years after his reported exposure to sarin, and as there are no medical studies which support a causal connection between exposure to sarin or any other environmental exposures in Southwest Asia to the development of pulmonary emboli, the Veteran’s blood clots, to include pulmonary embolisms, were not caused by or related to his active duty service, to include any exposure therein. As the examiner provided well-reasoned medical rationale for his opinion, the Board finds it probative. Furthermore, there are no contrary opinions of record. Throughout the appeal, the Veteran has submitted statements in support of his claim. The Veteran has alleged that he was exposed to sarin gas while on active duty and that such exposure caused his pulmonary embolisms in 2010 and 2015. The Board finds that service connection for blood clots, to include pulmonary embolisms, is not warranted on either a presumptive or direct basis. The Board notes that the medical evidence is not in dispute as to whether the Veteran currently has a blood clot disability, specifically pulmonary embolisms. There is ample evidence in the Veteran’s post-service treatment records to support such a diagnosis. Furthermore, the May 2018 VA examiner found that the Veteran had pulmonary embolisms in 2010 and 2015. However, the preponderance of the evidence is against service connection for blood clots, to include pulmonary embolisms, on a presumptive basis. Most notably, such is not listed as a chronic disease under 38 C.F.R. § 3.309 (a). Furthermore, there is no evidence of blood clots, to include pulmonary embolisms within one year after military service. As previously noted, there are no diagnoses for blood clots or complaints of any symptoms associated with blood clots or treatment for such during the Veteran’s service or for several years after his discharge. The earliest evidence of an assessment of blood clots or pulmonary embolism was in 2010. The Board also finds that the preponderance of the evidence is against service connection for blood clots, to include pulmonary embolisms, on a direct basis. First, there are no complaints, treatment or diagnosis of any blood clots or associated symptoms in service, and while the Veteran has alleged that he was exposed to sarin gas in service, the VA examiner found no link between the Veteran’s current condition and any alleged in-service exposure. Second, the earliest indication of blood clots, to include pulmonary embolism is post-service in 2010. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Finally, there is no competent, probative medical evidence in the record that links any current blood clots, to include pulmonary embolisms, to an incident of the Veteran’s active military service, to include his alleged sarin gas exposure. As previously noted, the Board has found the May 2018 opinion probative, and the VA examiner specifically found that the Veteran’s current condition was not related to the Veteran’s service, to include any sarin gas exposure therein. Consequently, there is no reasonable possibility of substantiating his blood clot, to include pulmonary embolism, claim on a direct basis. It is acknowledged that the Veteran is competent to give evidence about his observable symptomatology. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). It is further acknowledged that lay evidence concerning continuity of symptoms after service, may be credible regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). Here, however, any statements as to blood clots continuing immediately after service are not found to be persuasive in light of the persuasive medical evidence of record to the contrary. For these reasons, continuity of symptomatology has not been established, either through the medical evidence or through the Veteran’s statements. Stated differently, a chronic blood clot disability, to include pulmonary embolisms, was not demonstrated during service, at separation, or within one year of separation. The findings of record are consistent with a diagnosis of blood clots, to include pulmonary embolism but inconsistent with any possible allegation of continuity of symptomatology. Furthermore, there is no competent evidence linking the remote onset of blood clots, to include pulmonary embolisms, to service. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for blood clots, to include pulmonary embolisms. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating Claim Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating 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. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, are expected in all instances. 38 C.F.R. § 4.21. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Entitlement to a rating in excess of 40 percent disabling for service-connected fibromyalgia is denied. The Veteran contends that the severity of his fibromyalgia warrants a higher rating than is currently assigned. The Veteran filed his claim for an increased rating in June 2013, therefore the appeal period begins in June 2012. The Veteran’s service-connected fibromyalgia is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5025 and was rated as 20 percent disabling effective May 28, 2002, and currently as 40 percent disabling effective June 11, 2013. Diagnostic Code 5025 contemplates fibromyalgia with widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud’s-like symptoms. Specifically, Diagnostic Code 5025 provides for a 10 percent disability rating with fibromyalgia symptoms that require continuous medication for control. A 20 percent disability rating is warranted with fibromyalgia symptoms that are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time. A 40 percent disability rating is warranted with fibromyalgia symptoms that are constant, or nearly so, and refractory to therapy. The Veteran’s VA treatment records reflect the Veteran’s complaints of fibromyalgia symptoms. Specifically, the Veteran reported widespread musculoskeletal pain, fatigue, sleep disturbance, anxiety, as well as chronic pain in his hands and lower legs. In June 2014 the Veteran underwent a VA examination with an accompanying DBQ. The examiner noted the Veteran’s diagnosed fibromyalgia. He also noted the Veteran’s symptoms of widespread musculoskeletal pain, fatigue, sleep disturbance, and anxiety. The Veteran noted specifically chronic pain in his hands and lower legs. The examiner also noted that the Veteran reported that his symptoms were constant or nearly constant. For the period beginning June 11, 2012 to June 11, 2013 The Board finds that, for the period beginning June 11, 2012 to June 11, 2013, a rating in excess of 20 percent for the Veteran’s fibromyalgia is not warranted. The Board notes that the Veteran’s reported symptoms for the period in question do not reflect that they were constant or nearly constant, but rather show no increase from the previously reported symptoms which were episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time. Prior to June 11, 2013, there is no evidence that the Veteran’s fibromyalgia meets the criteria for a higher rating. As such, the Board finds that an increased rating is not warranted for the service-connected fibromyalgia for the period beginning June 11, 2012 to June 11, 2013. The Board has considered whether a higher or separate rating is warranted under any other potentially applicable Diagnostic Codes, however, the Board finds that the evidence of record does not establish any additional diagnoses beyond the already compensated fibromyalgia. For the period beginning June 11, 2013 The Board notes that the Veteran’s claim for an increased rating for his fibromyalgia for the period beginning June 11, 2013, will be decided based on law and not the facts of this case. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Veteran’s service-connected fibromyalgia is currently assigned a 40 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5025, effective June 11, 2013. He generally contends that a higher rating is warranted for his fibromyalgia but has provided no specific argument in support of his claim. Furthermore, as previously noted, the Veteran’s service-connected fibromyalgia has been assigned the maximum schedular rating available for such under 38 C.F.R. § 4.71a, Diagnostic Code 5025, effective June 11, 2013. As there is no legal basis upon which to award a higher schedular disability rating for fibromyalgia, his claim for a rating in excess of 40 percent on a schedular basis must be denied. The law, in particular the regulation governing schedular evaluation of fibromyalgia, is dispositive of the claim. See Sabonis, supra. Finally, the Veteran’s fibromyalgia is not shown (or alleged) to have manifestations or cause impairment not encompassed by the schedular criteria. The Veteran’s symptom reports are the basis for the 40 percent rating for fibromyalgia assigned. Therefore, the schedular criteria are not inadequate, and referral for extraschedular consideration is not necessary. Therefore, the Veteran is not entitled to ratings in excess of 20 percent disabling prior to June 11, 2013, and in excess of 40 percent disabling thereafter for his service-connected fibromyalgia. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Earlier Effective Date Claims Except as otherwise provided, the effective date of an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later (emphasis added). 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). The term “claim” or “application” means 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). However, any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. Entitlement to an effective date prior to June 11, 2013 for the grant of service connection for unspecified depressive disorder and somatic symptom disorder is denied. The Veteran generally contends that an effective date prior to June 11, 2013 is warranted for the award of service connection for unspecified depressive disorder and somatic symptom disorder. The Board notes that June 11, 2013, is the date on which VA received his claim to reopen service connection for unspecified depressive disorder and somatic symptom disorder based on new and material evidence. Thus, given the nature of the earlier effective date rules, the threshold question in this matter is whether an earlier date of claim may be applied to the Veteran’s appeal. Absent that, there would be simply no basis for awarding an earlier effective date. Historically, VA received the Veteran’s original claim seeking service connection for depression on June 19, 1995. In March 1996, the AOJ denied that claim because while they found that the Veteran had a current diagnosis of depression, the Veteran’s service treatment records contained no findings regarding the condition and there was no evidence presented to establish continuity of treatment for the condition since service and the evidence did not establish that a presumptive psychosis had manifest to a compensable degree within one year following discharge from service. While the Veteran filed a timely appeal of the decision, the Board in a December 1999 decision, denied the claim. Therefore, the December 1999 Board decision is final based on the evidence then of record. On June 11, 2013, the Veteran’s petition to reopen his claim was received. In July 2014, the AOJ reopened and granted the Veteran’s claim for unspecified depressive disorder with somatic symptoms, assigned a 10 percent disability rating, effective June 11, 2013, the date the Veteran’s petition to reopen, upon which the claim was eventually granted, was received. Considering the procedural history, the only way an earlier date of claim would apply to this appeal is to toll or otherwise set aside the finality of the prior denials of service connection. There are three ways the finality of a prior decision might be tolled. First, if the Veteran had timely filed an appeal of the decision but a statement of the case (SOC) was not issued, the matter would remain pending from the original denial. Shipley v. Shinseki, 24 Vet. App. 458, 461 (2011); Tablazon v. Brown, 8 Vet. App. 359, 361 (1995). Unfortunately, as noted above, while the Veteran did file an appeal of the original March 1996 rating decision, not only was a SOC issued, but the claim was eventually denied in a December 1999 Board decision. There is no evidence or allegation that the Veteran did not receive the rating decision or the Board decision or his notice of appellate rights, and he did not file any appeal of the December 1999 Board decision. Thus, this first scenario does not apply. Second, 38 C.F.R. § 3.156 (b) provides that, where new and material evidence is received before an appeal period has expired, a rating decision does not become final and any “subsequent decision based on such evidence relates back to the original claim.” See also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); King v. Shinseki, 23 Vet. App. 464, 467 (2010) (holding that, if new and material evidence had been submitted but had not been acted upon, the Veteran’s claim could still be pending until a decision had been made on that evidence); Young v. Shinseki, 22 Vet. App. 461, 466 (2009); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). However, again while the Veteran did submit evidence during the one-year appellate period following the original March 1996 denial, such was considered not only in the May 1996 SOC, but in the December 1999 Board decision. Therefore, there is no basis for tolling the finality of any prior denials under 38 C.F.R. § 3.156 (b). Finally, 38 C.F.R. § 3.156 (c) provides that VA must reconsider a previously decided claim if, at any time after VA issues a prior decision on that claim, it receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when first deciding the claim. In order to trigger such reconsideration, the record(s) in question must have existed at the time VA first decided the claim. Unfortunately, while service treatment records were received since the prior denials, they were duplicative of records previously of record. Therefore, there is also no basis for reconsidering the prior denials de novo under 38 C.F.R. § 3.156 (c). Absent any way to toll the finality of the prior denials, the only means of showing an earlier date of claim applies to the Veteran’s appeal is to set aside its finality altogether by showing that clear and unmistakable error (CUE) was committed in the decision itself. Allegations of CUE must be plead with some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons as to why the result would have been manifestly different but for the alleged error. Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed. Cir. 2000); Fugo v. Brown, 6 Vet. App. 40, 44 (1993); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999). In this case, the Veteran has not asserted or filed any formal or informal allegation of CUE in either the March 1996 RO or December 1999 Board decisions. Consequently, the Board can find no basis for tolling or setting aside the finality of the prior denials at this time. Therefore, the only date of claim that may be considered in this appeal at present is June 11, 2013, the date VA received his claim to reopen service connection for unspecified depressive disorder and somatic symptom disorder. Thus, the current effective date is the earliest possible effective date. Accordingly, the Board finds the preponderance of the evidence is against the Veteran’s claim, and the appeal in this matter must be denied. Entitlement to an effective date prior to June 11, 2013 for the increased evaluation of 40 percent disabling for service-connected fibromyalgia is denied. The Veteran seeks to establish an effective date prior to June 11, 2013 for the award of a 40 percent disability rating for fibromyalgia. Here, the Veteran was granted service connection and assigned a 20 percent disability rating for fibromyalgia, effective May 28, 2002, in a September 2005 rating decision. Nothing received in the year following notification of the September 2005 decision can be considered as expressing dissatisfaction or disagreement with the agency determination regarding the claim and a desire to contest the result, a requirement for a valid notice of disagreement. 38 C.F.R. § 20.201. New evidence material to that issue was also not received during the requisite time period. 38 C.F.R. § 3.156. As such, the September 2005 decision is final. On June 11, 2013, the Veteran submitted an informal claim for entitlement to compensation benefits for irritable bowel syndrome, psych conditions, blood clots and sleep apnea. On August 3, 2013, the Veteran submitted another informal claim for compensation benefits for blood clots, sleep apnea, PTSD, irritable bowel syndrome, depression, anxiety, fibromyalgia, and chronic fatigue. The RO interpreted these as a claim for increase for the Veteran’s service-connected fibromyalgia. The RO granted an increased rating of 40 percent, effective June 11, 2013 (date of claim for increase) in a July 2014 rating decision, following a June 2014 VA examination indicating an increase in the Veteran’s symptoms. The Veteran submitted a notice of disagreement to the effective date of his award in August 2014. There is no document dated between the RO’s decision in September 2005 and June 2013 that could be construed as a claim for entitlement to an increased disability rating for fibromyalgia. As such, the relevant date of claim in this case is June 11, 2013. Although the Board is sympathetic to the Veteran’s claims, the Board is bound by the applicable statutes and regulations. 38 U.S.C. § 7104 (c); 38 C.F.R. § 20.101 (a) (2018). The September 2005 rating decision was final and a new claim was not filed until June 2013. Thus, the effective date cannot be earlier than June 11, 2013 unless the evidence reflects that the worsening of the Veteran’s disability occurred in the year prior to the claim. See 38 C.F.R. § 3.400 (o). Based on a review of the record, there is no medical evidence that shows worsening of the Veteran’s fibromyalgia one year prior to the June 2013 claim. Rather there is no clinical evidence of worsening until the June 2014 VA examination. Hence, the current effective date of June 11, 2013 is proper. As such, the preponderance of the evidence is against entitlement to an earlier effective date for the award of 40 percent for fibromyalgia. Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply; the Veteran’s claim of entitlement for an earlier effective date for the award of 40 percent rating for fibromyalgia is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for PTSD (also claimed as anxiety) is remanded. The Veteran alleges that he suffers from PTSD as a result of traumatic incidents that occurred while he was on active duty. Specifically, the Veteran has alleged an incident where he witnessed the death of a fellow solider as a result of an accidental explosion. In addition, the Veteran now alleges that he witnessed the death of another soldier during combat, Cindy Beaudoin, which has caused his PTSD. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For below noted reasons, the Board finds that an additional VA examination and addendum opinion is needed to determine the nature and etiology of the Veteran’s claimed PTSD. The Board notes that the Veteran has undergone VA psychological examinations in July 1994, November 1995, July 2014, October 2015, and July 2017. Furthermore, the examiners found that not only did the Veteran have PTSD but that such was related to an incident in service. However, that incident, the death of a fellow soldier by accidental explosion, could not be confirmed. Therefore, service connection was denied. However, the Board notes that the prior examiners did not consider the Veteran’s allegations as they relate to the death of Cindy Beaudoin. Therefore, the Board finds that an addendum opinion considering all of the Veteran’s allegations should be obtained. The Board notes that the RO previously attempted to verify the Veteran’s claimed in-service stressor but their attempts failed to verify his prior stressor. However, the Veteran has alleged a new stressor, the death of Cindy Beaudoin, and therefore on remand, additional efforts should be made to verify the Veteran’s account. The RO should contact the Joint Services Records Research Center (JSRRC) to attempt to include all relevant records that may reflect whether the Veteran was present at and/or witnessed the death of Cindy Beaudoin. A formal finding should be made and associated with the claims file. In Gagne v. McDonald, 27 Vet. App. 397, 403 (2015), the United States Court of Appeals for Veterans Claims (Court) held that VA was, at minimum, obligated to submit multiple requests to the JSRRC, covering the relevant time window in 60-day increments. The Court explained that VA’s duty to assist is not bound by the JSRRC’s 60-day requirement and the fact that multiple record searches may burden JSRRC employees does not make VA’s efforts to obtain the required information futile. Entitlement to a rating in excess of 10 percent disabling for service-connected unspecified depressive disorder and somatic symptom disorder is remanded. Relevant to the Veteran’s claim for an increased rating for his unspecified depressive disorder and somatic symptom disorder, the Court has held that, where the record does not adequately reveal the current state of a claimant’s disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). The Board finds that the Veteran’s claim for an increased rating for his service-connected unspecified depressive disorder and somatic symptom disorder must be remanded in order to afford him a contemporaneous VA examination in order to assess the current nature and severity of his service-connected disability. In this regard, the record reflects that the Veteran was most recently afforded a VA examination in July 2017. Since that time, the Veteran has noted an increase in the severity of his symptoms and alleges that a higher rating is warranted. In light of the allegations of worsening symptoms and the amount of time which has passed since the Veteran’s prior examination, the Board finds that a remand is required in order to afford the Veteran a contemporaneous VA examination so as to determine his current level of impairment with regard to his service-connected unspecified depressive disorder and somatic symptom disorder. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain updated treatment records, including VAMC records since October 2019. 2. Ask the Veteran to confirm the dates, location, and circumstances of his reported in-service stressor, specifically the death of Cindy Beaudoin. Based on his response, inquiries should be made to all appropriate sources, including the JSRRC, to verify the reported stressor. Per the explanation above, the AOJ must ensure that the entire period which is identified is covered by the inquiries, submitting multiple 60-day requests to JSRRC if necessary. The AOJ should issue a formal finding documenting the scope of the inquiry, the steps taken, and the ultimate findings. 3. The Veteran should then be afforded a VA examination in order to determine the current nature and etiology of his claimed PTSD. The record should be made available to and be reviewed by the examiner. Following a review of the record, the reviewing examiner is asked to furnish an opinion with respect to the following questions: The examiner should specifically indicate whether the Veteran meets the diagnostic criteria for PTSD and whether such diagnosis is the result of the Veteran’s claimed in-service stressors, to include the death of Cindy Beaudoin. If the examiner does not find that the Veteran meets the criteria for PTSD, he or she should explain why in detail and reconcile such findings with the prior opinions of record. In offering any opinion, the examiner should consider the full record, to include the Veteran’s lay statements regarding the onset of his PTSD and continuity of symptomatology, as well as the medical records. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 4. The Veteran should be afforded a VA examination to determine the current nature and severity of his service-connected unspecified depressive disorder and somatic symptom disorder. 5. Readjudicate and issue a supplemental statement of the case. M.J. COLICELLI Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Unger, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.