Citation Nr: 20024923 Decision Date: 04/10/20 Archive Date: 04/10/20 DOCKET NO. 15-18 956A DATE: April 10, 2020 ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service for a lumbar spine disability is granted. New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for a cervical spine disability is granted. Service connection for erectile dysfunction is granted. Service connection for a lumbar spine disability is granted. Service connection for a cervical spine disability is granted. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. In a September 2008 decision, the Board denied service connection for a lumbar spine disability. 2. Evidence associated with the file since September 2008, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a lumbar spine disability. 3. In a September 2008 decision, the Board denied service connection for a cervical spine disability. 4. Evidence associated with the file since September 2008, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a cervical spine disability. 5. Affording the Veteran the benefit of the doubt, his erectile dysfunction disability was incurred in service. 6. Affording the Veteran the benefit of the doubt, his lumbar spine disability was incurred in service. 7. Affording the Veteran the benefit of the doubt, his cervical spine disability was incurred in service. 8. The Veteran’s physical and mental impairment caused by his service-connected disabilities render him unable to obtain and maintain gainful employment. CONCLUSIONS OF LAW 1. The September 2008 Board decision denying service connection for a lumbar spine disability is final. 38 U.S.C. § 7104 (b) (2012); 38 C.F.R. §§ 3.104 (a), 20.302 (a), 20.1103. 2. As pertinent evidence received since the September 2008 denial is new and material, the criteria for reopening the claim for service connection for a lumbar spine disability is met. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. § 3.156. 3. The September 2008 Board decision denying service connection for a cervical spine disability is final. 38 U.S.C. § 7104 (b) (2012); 38 C.F.R. §§ 3.104 (a), 20.302 (a), 20.1103. 4. As pertinent evidence received since the September 2008 denial is new and material, the criteria for reopening the claim for service connection for a cervical spine disability is met. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. § 3.156. 5. The criteria to establish service connection for erectile dysfunction have been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 6. The criteria to establish service connection for a lumbar spine disability have been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304. 7. The criteria to establish service connection for a cervical spine disability have been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304. 8. The criteria for entitlement to a TDIU have been met, effective August 27, 2012. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.10, 4.16, 4.18, 4.19, 4.25. 9. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1969 to September 1974. In October 2019, the Veteran and his spouse testified at a Central Office hearing before the undersigned acting Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. The issue of service connection for a traumatic brain injury (TBI) has been raised by the record in a May 2011 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2019). Petition to Reopen Previously Denied Claim Generally, a claim that has been denied in an un-appealed Board decision or an un-appealed 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. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a); see also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). 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 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996); see also Hodge, 155 F.3d at 1363 (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant the claim). 1. Whether new and material evidence has been received to reopen the claims of entitlement to service for lumbar spine and cervical spine disabilities The claims of service connection for lumbar spine and cervical spine disabilities were previously denied in a September 2008 Board decision. Because new and material evidence has since been submitted, these claims will be reopened. In a December 2005 rating decision, the RO denied the Veteran’s claims for entitlement to service connection for lumbar spine and cervical disabilities because the evidence did not indicate the Veteran’s current spinal disabilities were incurred in service. The Veteran initiated a timely appeal, and the Board denied the claim in a September 2008 decision. The denial is final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7104 (b); see also 38 C.F.R. §§ 3.104, 3.156 (a), 20.302, 20.1103. In May 2011 the Veteran petitioned to reopen the claim for service connection of his lumbar spine and cervical spine disabilities. In November 2012 the RO provided the Veteran with a VA examination for his spinal disabilities. In an April 2013 rating decision, the RO granted reopening but denied the underlying claims. The Veteran filed a timely notice of disagreement (NOD) and perfected the appeal following the October 2014 statement of the case (SOC). The Board is required to consider the question of whether new and material evidence has been received to reopen the Veteran’s claim without regard to the RO’s determination in order to establish the Board’s jurisdiction to address the underlying claims and to adjudicate the claims on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Evidence submitted since the September 2008 Board decision consists of private and VA treatment records and the Veteran’s statements. The private treatment records suggest a nexus between the Veteran’s current spinal disabilities and his service and are therefore material. In addition, by affording the Veteran a new VA examination after the Veteran submitted his petition to reopen, VA conducted a de facto reopening of the claim. See Falzone v. Brown, 8 Vet. App. 398, 404 (1995); see also Shade, 24 Vet. App. at 110. Given the threshold for substantiating a claim to reopen is low, the evidence associated with the claims file since the September 2008 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claims for service connection and raises a reasonable possibility of substantiating the claims. Thus, the claims of entitlement to service connection for lumbar and cervical spine disability are reopened and will be discussed on the merits below. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Certain disorders listed as “chronic” in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b) are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis, such as degenerative joint disease, is a “chronic disease” listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As an initial matter, the Veteran contends his erectile dysfunction, lumbar spine and cervical spine disabilities are all residual injuries of an in-service blast explosion experienced in March 1970 while serving in Vietnam. The Veteran stated that during a patrol a fellow service member triggered a “booby trap,” or an explosive device more commonly known as an improvised explosive device (IED). The Veteran reported he was thrown back against a boulder or rock, that he lost consciousness, and that he was told he suffered a concussion. The Veteran contends this particular patrol incident, and other similar combat experiences, caused traumatic injuries that have since resulted in chronic disabilities. Under 38 U.S.C. § 1154 (b), there is a relaxed evidentiary standard for proving the onset or aggravation of an injury or disease during combat. Generally, VA will accept as true a combat veteran’s report of injury or disease in service, as long as the report is consistent with the circumstances, conditions, or hardships of such service, and in the absence of evidence to the contrary. See 38 C.F.R. §§ 3.304 (d) (general combat presumption). Participation in combat is a determination that is to be made on a case-by-case basis, and it requires that a Veteran have “personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.” See Sizemore v. Principi, 18 Vet. App. 264 (2004); VAOPGCPREC 12-99 (October 18, 1999). Certain decorations are evidence of combat participation. See M21-1 IV.ii.1.D.1.e for list of such decorations. However, receipt of a decoration is not the only acceptable evidence of engagement. Service in a combat zone or a particular military occupational specialty, alone, is not sufficient to establish that a Veteran “engaged in combat with the enemy” so as to qualify for the presumption based on combat service. Although the Veteran’s service treatment records do not substantiate any treatment for residuals of an in-service blast or explosion, the Veteran’s personnel records indicate he received a Purple Heart for wounds received in combat while serving in Vietnam in March 1970. Generally, VA will accept as true a combat veteran’s report of injury or disease in service, as long as the report is consistent with the circumstances, conditions, or hardships of such service, and in the absence of evidence to the contrary. See 38 C.F.R. §§ 3.304 (d). Given the evidence of the Veteran’s participation in hostile action, the Veteran’s in-service event with an IED is recognized. 38 U.S.C. § 1154 (b). However, 38 U.S.C. § 1154 (b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, (i.e., that a relevant in-service event occurred) not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154 (b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A veteran must still generally establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. Gregory v. Brown, 8 Vet. App. 563 (1996). 2. Entitlement to service connection for erectile dysfunction The Veteran contends his erectile dysfunction disability is either directly related to the IED event noted above or secondary to the medications prescribed for his service-connected posttraumatic stress disorder (PTSD), a theory known as secondary service connection. At the November 2012 VA medical examination, the Veteran reported testing revealed he had a low testosterone count, that his condition had been treated with patches and injections, and that he tried Viagra and Cialis and stopping his PTSD medications without positive results. The examiner noted the Veteran was diagnosed with erectile dysfunction in 2003 and that he was not taking continuous medication to treat the condition. The examiner also noted the etiology of the Veteran’s condition was likely related to aging and vascular disease. The examiner opined the Veteran’s condition was “primarily” vascular, that he was diagnosed with the condition prior to being prescribed medications to treat his PTSD, that when he stopped taking PTSD medication his condition continued, and that as someone with a history of tobacco use, coupled with aging, his condition was not etiologically related to his service-connected PTSD disability. In an October 2014 addendum opinion, a different examiner reviewed the claims file and indicated the Veteran’s condition was at least as likely as not aggravated beyond its natural progression by the medication prescribed to treat his PTSD and the pain medication prescribed to treat his right shoulder disability. However, the examiner then noted that the current severity of the Veteran’s condition was not greater than the baseline for the condition. In a July 2017 private opinion, Dr. S. Mulligan reviewed the Veteran’s claims file, to include service and post-service treatment records, and noted the Veteran experienced residual injuries related to the IED incident during service. The examiner indicated the Veteran experienced a traumatic brain injury (TBI) that was not properly diagnosed and treated, and that the Veteran’s TBI caused or contributed to his erectile dysfunction condition. In addition, the examiner noted that a “known” side-effect of the prescribed medications for PTSD was erectile dysfunction. The examiner concluded that the Veteran’s erectile dysfunction condition was at least as likely as not caused by his military service injuries. In an October 2019 private opinion, Dr. C. Bash, a neuro-radiologist, reviewed the Veteran’s claims file, and opined that the Veteran’s erectile dysfunction condition was at least as likely as not related to the injuries sustained from the in-service blast explosion, to include TBI, spinal injuries and the development of PTSD. The examiner also noted that while the use of treatment medications may have aggravated the Veteran’s condition, its primary cause was likely the trauma caused by the in-service IED event. The Board presently finds that the evidence is in approximate balance regarding whether the Veteran’s current erectile dysfunction disability was incurred in service. Further medical inquiry would not substantially assist the Board in its determination and the claim for service connection for an erectile dysfunction disability will be granted. 3. Entitlement to service connection for lumbar spine and cervical spine disabilities The Veteran’s August 1968 report of medical examination indicates his clinical musculoskeletal evaluation prior to entry was normal. Although the Veteran’s March 1970 IED event is substantiated, service treatment records (STRs) do not indicate any complaints, diagnoses, or treatments for back or neck disorders during service. His July 1974 clinical musculoskeletal evaluation at release from active duty was normal. At the July 2005 VA medical examination, the Veteran reported the details of the IED incident that he contends resulted in his spinal injuries. He reported that as he bent down, a fellow service member tripped a “booby trap” that resulted in an explosion. The Veteran reported he was blown against a rock, that he was unconscious for an unknown period of time, that he suffered a concussion, but that he did not go to an aid station or hospital. He reported that after service he underwent neck surgery in November 1992 and May 2004, that he had current radiating pain down his right arm from his shoulder to his elbow, additional radiating pain in his left leg down into his foot, and that his cervical and lumbar spines had become progressively worse. He reported flare-ups, and treatment to include surgeries, pain medication, physical therapy, and exercises. The examiner noted the Veteran’s February 2005 MRI of his cervical spine showed evidence of fusion, with no abnormal signals to the brain stem, but with mild degenerative joint disease (DJD), and that a February 2005 MRI of his lumbar spine indicated degenerative disc disease (DDD) with DJD, bilateral facet hypertrophy and stenosis. The examiner opined that since there was no evidence of any previous wounds, to include shrapnel scars, to his back, and that the Veteran did not complain or receive any treatment for any neck or back pain during service after the blast explosion, the Veteran’s current spinal injuries were less likely due to any injuries sustained during service. At his January 2008 VA medical examination, the Veteran reported being under attack and experiencing a blast explosion, that he was not treated for any spinal injuries immediately after or at any time during service, and that he began receiving back treatment approximately 4 years prior after reporting radiating pain down his left leg. He also reported undergoing a laminectomy in September 2007 after receiving epidural injections for his pain in 2006. The examiner opined the Veteran sustained mild self-limiting, uncomplicated and resolved minor back and neck injuries with no lasting residuals from the in-service IED blast that did not lead to his stenosis or degenerative diagnoses. In May 2012, a private examiner Dr. J. Bush reviewed the Veteran’s claims file, to include service treatment records and prior VA examinations, and opined it was more likely than not that the Veteran’s current cervical and lumbar spine pathologies were incurred from the combat injury sustained in 1970. At the November 2012 VA medical examination, the Veteran reported his 1970 blast explosion experience. The examiner opined the Veteran’s spinal disabilities were less likely than not incurred in or caused by the claimed in-service events because the Veteran’s July 1974 separation physical did not reveal any chronic low back and neck conditions related to his in-service event and there were no current findings from the examination to associate his lumbar and cervical spine conditions to his military service. The examiner further stated that in his opinion the chronic lumbar and cervical spine disability were not etiologically related to his shrapnel wounds received during service. In an October 2014 addendum opinion, a different VA examiner reviewed the claims file and disagreed with the private medical opinion. The examiner opined that because the Veteran’s cervical and lumbar spine disabilities did not manifest during or soon after discharge, that his current disabilities were less likely than not caused by an in-service injury and more likely reflective of the degenerative nature of the conditions. In April 2017, a different private examiner Dr. S. Mulligan reviewed the Veteran’s claims file and personally evaluated the Veteran. The Veteran reported low back pain that caused difficulty in standing, walking, and while using his walker. He also reported radiating pain down both legs. The examiner stated she agreed with Dr. Bush’s assessment, and reiterated that the Veteran’s lumbar and cervical spine disabilities were directly related to his military service and, in particular, to the IED blast explosion he experienced during combat. In October 2019, a different private examiner Dr. C. Bash reviewed the Veteran’s claims file, personally evaluated the Veteran and reviewed medical literature regarding the Veteran’s various spinal diagnoses. The examiner opined it was “highly likely” that the Veteran’s nerve pain and joint trauma are a result of the traumatic blast experienced during service and that the Veteran’s cervical and lumbar spine disability were “most likely” caused by his military service. The Board presently finds that the evidence is in approximate balance regarding whether the Veteran’s current lumbar and cervical spine disabilities were incurred in service. Further medical inquiry would not substantially assist the Board in its determination and the claims for service connection for the Veteran’s lumbar and cervical spine disabilities will be granted. The Board expresses no opinion regarding the severity of the disorder. The RO will assign an appropriate disability rating on receipt of this decision. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms “compensation,” “rating,” and “service connection” as although related, each having a distinct meaning as specified by Congress). 4. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) A total rating based on unemployability due to service-connected disabilities may be granted if the service-connected disabilities preclude the Veteran from obtaining or maintaining substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). For those Veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). Provision 38 C.F.R. § 4.16 (a) establishes that the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran’s case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15 (2016). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. The Veteran filed his claim for TDIU on August 27, 2012. In addition to the grants noted above, service-connected disability compensation is in effect for PTSD at 70 percent disabling; right shoulder tendonitis at 20 percent disabling; tinnitus at 10 percent disabling; and noncompensable bilateral hearing loss and shrapnel wounds. The initial threshold requirements for entitlement to TDIU are thus met. The question for consideration is whether the Veteran is capable of performing the physical and mental acts required by employment. The Veteran testified that he worked at his own insurance agency, but that he was released from employment after many instances of work-related memory lapses. In addition, the Veteran reported needing a walker to ambulate, experiencing increased numbness and pain in his feet and extremities, and having difficulties performing activities of daily living. The Veteran is competent to report observable symptomatology and its effects on his daily activities. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Barr v. Nicholson, 21 Vet. App. 303, 307-8 (2007). Given the Veteran’s physical and mental impairments caused by his previous and newly service-connected disabilities, TDIU is granted effective August 27, 2012, the date of claim. G. Jackson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.