Citation Nr: 20037540 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 13-28 345 DATE: June 2, 2020 ORDER New and material evidence having been received, the claim for entitlement to service connection for hepatitis C, for substitution purposes, is reopened. Entitlement to service connection for substance use disorder as secondary to service connected acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression and anxiety, for substitution purposes, is granted. Entitlement to service connection for hepatitis C as secondary to substance use disorder, for substitution purposes, is granted. Entitlement to service connection for cirrhosis of the liver as secondary to hepatitis C, for substitution purposes, is granted. Entitlement to service connection for diabetes mellitus, type II, for substitution purposes, is granted. Entitlement to service connection for sexual dysfunction, claimed as erectile dysfunction, as secondary to service-connected acquired psychiatric disability, to include PTSD, depression and anxiety, for substitution purposes, is granted. Entitlement to an effective date earlier than February 5, 2004, for the grant of service connection for an acquired psychiatric disability to include PTSD, depression and anxiety, for substitution purposes, is denied. Entitlement to an initial rating higher than 70 percent for service-connected acquired psychiatric disability to include PTSD, depression and anxiety, for substitution purposes, is denied. Entitlement to an effective date earlier than April 10, 2004, for the grant of a total disability rating based on individual unemployability due to service-connected disability (TDIU), for substitution purposes, is denied. Entitlement to an effective date earlier than April 10, 2004, for the grant of eligibility to Dependents’ Educational Assistance under 38 U.S.C (Chapter 35), for substitution purposes, is denied. FINDINGS OF FACT 1. A January 2010 Board decision denied service connection for hepatitis C. 2. Evidence received since the January 2010 Board decision is not cumulative, it relates to an unestablished fact necessary to substantiate the claim for service connection for hepatitis C, and it raises a reasonable possibility of substantiating the claim. 3. The Veteran’s substance use disorder is shown by clear medical evidence to have been proximately due to or the result of his service-connected psychiatric disability to include PTSD, anxiety and depression. 3. The Veteran’s hepatitis C was proximately due to or the result of his service-connected alcohol use disorder. 4. The Veteran’s cirrhosis of the liver was proximately due to or the result of his hepatitis C. 5. The Veteran’s diabetes mellitus, type II, is presumed to have been related to in-service exposure to herbicides. 6. The Veteran’s sexual dysfunction was proximately due to or the result of his service-connected psychiatric disability to include PTSD, anxiety, and depression. 7. Prior to February 5, 2004, and after the August 1999 final RO decision, there was no formal claim, informal claim, or written intent to file a claim to reopen a claim of entitlement to service connection for a psychiatric disability, claimed as PTSD. 8. The Veteran’s acquired psychiatric disorder to include PTSD, anxiety and depression was not manifested by symptoms resulting in total occupational and social impairment at any point during the pendency of the appeal. 9. The Veteran maintained substantially gainful employment until April 10, 2004. 10. The Veteran did not have a permanent and total service-connected disability prior to April 10, 2004. CONCLUSIONS OF LAW 1. The January 2010 Board denial of the claim for service connection for hepatitis C is final. 38 U.S.C. § 7104 (2018); 38 C.F.R. §§ 3.156, 20.1100 (2019). 2. New and material evidence has been received to reopen the previously denied and final claim for service connection for hepatitis C. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2019). 3. The criteria for service connection for substance use disorder, as proximately due to or the result of service-connected psychiatric disability to include PTSD, anxiety, and depression have been met. 38 U.S.C. § 1110 (2018); 38 C.F.R. § 3.310 (2019). 4. The criteria for service connection for hepatitis C, as proximately due to or the result of service-connected substance use disorder, have been met. 38 U.S.C. § 1110 (2018); 38 C.F.R. § 3.310 (2019). 5. The criteria for service connection for cirrhosis of the liver, as proximately due to or the result of service-connected hepatitis C, have been met. 38 U.S.C. § 1110 (2018); 38 C.F.R. § 3.310 (2019). 6. The criteria for service connection for type II diabetes mellitus are met. 38 U.S.C. §§ 1110, 1116, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 7. The criteria for service connection for sexual dysfunction, claimed as erectile disfunction, as proximately due to or the result of service-connected acquired psychiatric disability to include PTSD, anxiety and depression, have been met. 38 U.S.C. § 1110 (2018); 38 C.F.R. § 3.310 (2019). 8. The criteria for an effective date earlier than February 5, 2004, for the grant of service connection for an acquired psychiatric disability to include PTSD, anxiety, and depression, have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155 (in effect prior to March 24, 2015), 3.400. 9. The criteria for a rating greater than 70 percent for an acquired psychiatric disorder to include PTSD, anxiety, and depression have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. § 4.130, Codes 9311, 9411 (2019). 10. The criteria for an effective date earlier than April 10, 2004, for the grant of service connection for a TDIU have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 11. The criteria for an effective date earlier than April 10, 2004, for the grant of DEA benefits have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1966 to October 1968. He died in May 2016. In August 2016, the appellant, who is the Veteran’s spouse, filed a request for substitution. See 38 U.S.C. § 5121A 38 C.F.R. § 3.1010. The Agency of Original Jurisdiction (AOJ) granted this request in April 2017. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from May 2011, March 2012, May 2013 and June 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board at which times the case was remanded for additional development. In January 2017, the RO received the appellant’s request to withdraw the Veteran’s July 2014 and August 2014 Board hearing requests. New and Material Evidence In January 2010, the Board denied the Veteran’s claim for service connection for hepatitis C. This decision is final. 38 U.S.C. § 7400; 38 C.F.R. § 20.1100. The present appeal originates from the Veteran’s March 2010 application to reopen the claim. VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, “new evidence” means existing evidence not previously submitted to VA. “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. Taken in combination, 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). New evidence may be sufficient to reopen a claim if it can 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 a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). As noted, the last final decision that denied service connection for hepatitis C is the Board’s January 2010 decision. In this decision the Board found that the Veteran’s report of contracting hepatitis C from handling dead bodies in Vietnam and from receiving a blood transfusion for a left foot injury in Vietnam was not supported by the facts. The Board also noted that there was a medical opinion in June 2004 that linked the Veteran’s hepatitis C to his substance abuse which was not service-connected at the time. In light of the determination below granting service connection for substance use disorder on a secondary basis, the Board finds that there has been new and material evidence sufficient to reopen the claim for service connection for hepatitis C, to include as secondary to substance use disorder. Service Connection Claims Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, diabetes mellitus shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). Alternatively, service connection may be granted on a presumptive basis for certain chronic diseases as outlined in 38 C.F.R. § 3.309 (a), to include diabetes mellitus and cirrhosis of the liver, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran’s separation from active military service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). The law prohibits a grant of direct service connection for drug or alcohol abuse on the basis of incurrence or aggravation in the line of duty during service. Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388-351 (1990); VAOPGCPREC 2-98 (Feb. 10, 1998), 63 Fed. Reg. 31263 (1998). However, a Veteran may be service-connected for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his service-connected disability. In order to qualify for service connection, the Veteran must establish, by clear medical evidence, that his alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder, and that it is not due to willful wrongdoing. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). In rendering a decision on 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 evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, supra. Analysis Substance Use Disorder The basis of the AOJ’s denial of service connection for alcohol abuse in March 2012 was that the Veteran’s drinking constituted willful misconduct and was thus a bar to service connection. 38 C.F.R. § 3.301 (a). The AOJ also noted at that time that the issue of service connection for PTSD and for mental disorders other than PTSD were under appeal and that if service connection for such disability or disabilities was granted than the issue of alcohol abuse on a secondary basis would be reconsidered. Despite the notation in the March 2012 rating decision that the claim for service connection for PTSD was under appeal, the record shows that the AOJ granted service connection for PTSD in May 2011. Thereafter, in May 2013, the AOJ granted service connection for depression and anxiety. Thus, these grants warrant consideration of the pending appeal for service connection for substance use disorder on a secondary basis. 38 C.F.R. § 3.310. The Veteran’s substance abuse dates back many years. In this regard, VA hospital records show that he was hospitalized for alcohol addiction from November 1981 to December 1981, and they note that he had a long-standing history of alcohol abuse starting at age 18. There is also a June 2004 VA examination report that relays the Veteran’s report of abusing drugs and alcohol during and after service until 1995 when he quit. A VA examiner in March 2011 opined that the Veteran’s substance abuse, which was in remission, served to medicate his PTSD symptoms. Also, a private psychologist in February 2015 opined that the Veteran’s polysubstance addiction developed after his discharge from the Marines and possibly when he was in the service and that it would appear to be directly related to his PTSD symptoms which were extreme even while in the military as he may have shot himself deliberately in the foot and later went AWOL as well. This opinion is consistent with an earlier VA PTSD examination report in August 2009 wherein the examiner reported that the Veteran’s gunshot wound to his left foot suggests that he was impulsive and frantic to get out of service. He also relayed the Veteran’s report that he felt fearful and horrified while in Vietnam. The March 2011 VA examiner went on to report that it appeared that the Veteran only stopped abusing drugs due to liver damage and his awareness that continued substance abuse would lead to his death. He added that the Veteran was likely using the above drugs and alcohol to emotionally numb himself not to feel the ongoing anxiety and mood instability associated with his PTSD symptoms in the past. Although the AOJ continued the denial of this claim in an August 2013 statement of the case on the basis of no current disability by relying on the fact that the Veteran’s substance use disorder had been in remission for many years, a diagnosed disability in remission cannot be equated with no disability. In light of the evidence above, the Board finds that the Veteran’s substance use disorder which began either in service or shortly thereafter was not merely “deliberate drinking” to “enjoy its intoxicating effects,” but rather has been shown by clear medical evidence to have been a coping mechanism to deal with his service-connected psychiatric symptoms which began in service. 38 C.F.R. § 3.301(c)(2). Accordingly, service connection for substance use disorder as secondary to service-connected acquired psychiatric disability to include PTSD, anxiety and depression is granted for substitution purposes. 38 C.F.R. § 3.310.   Hepatitis C Turning to the merits of this now reopened claim, an August 2013 VA examiner reported that the onset of the Veteran’s hepatitis C was in 1998. He also said that the Veteran’s risk factors for hepatitis C included drug abuse (in the 1970s) and alcohol abuse (in the 1970s up to the 1990s). Additionally, as noted above, the VA examiner in June 2004 opined that it is as likely as not that the Veteran’s substance abuse in and out of service is responsible for his hepatitis C. In light of the favorable evidence above linking the Veteran’s hepatitis C to his now service-connected substance use disorder, and the lack of any evidence to the contrary, the Board finds that the preponderance of the evidence is in favor of granting service connection for hepatitis C as proximately due to or caused by his service-connected substance use disorder, for substitution purposes. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.310. Cirrhosis of the Liver As a starting point, presumptive service connection for cirrhosis of the liver is not warranted due to a lack of evidence showing that this disability became manifest within a year of the Veteran’s service discharge. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Rather, an August 2013 VA examination report notes that the onset of this disability was in 2004. This is consistent with the Veteran’s medical treatment records. In terms of evidence linking the Veteran’s post-service diagnosis of cirrhosis of the liver to service or to a service-connected disability, there is the opinion of a VA examiner in August 2013 who opined that the Veteran’s cirrhosis of the liver is at least as likely as not due to his chronic hepatitis C. This examiner went on to negate a nexus between the Veteran’s now service-connected substance use disorder and hepatitis C, although he did suggest the possibility that it was an aggravating factor. In light of the favorable opinion above linking the Veteran’s cirrhosis of the liver to his now service-connected hepatitis C and the lack of any evidence to the contrary, the Board finds that the preponderance of the evidence is in favor of granting service connection for cirrhosis of the liver as proximately due to or caused by the Veteran’s service-connected hepatitis C, for substitution purposes. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.310. DM II The appellant’s representative asserts that service connection is warranted on a presumptive basis for DM, type II, due to the Veteran’s service in Vietnam. See 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran’s service in Vietnam is shown in his service records and this fact is not in dispute. However, what is in dispute is whether the Veteran had DM, type II, as claimed. This is due to conflicting medical evidence. Such evidence in chronological order includes a March 2010 VA outpatient record containing the Veteran’s report that he was told that he had “high blood sugar DM or pre-DM in January 2010. He was assessed at that time as having “diabetes/metabolic syndrome” and he requested self-care education. However, an August 2011 VA outpatient record notes that the Veteran’s diabetes diagnosis was incorrect, and it contains an impression of hyperglycemia that had resolved. It further notes that the Veteran was off of all meds. A September 2011 VA outpatient record notes that the Veteran had a history of diabetes mellitus and was off of all meds. A VA examination report in November 2011 notes that the Veteran did not have an endocrine disorder. An October 2013 hepatology record states the Veteran stopped metformin two years earlier, and another October 2013 VA record shows that the Veteran had to reschedule a glucose tolerance test. An April 2014 VA outpatient record again notes that the Veteran’s diagnosis of DM, II, was incorrect, and that all diabetic reminders had been deactivated, while a VA podiatry record in May 2015 continues to note that the Veteran had DM, type II. While far from clear, it appears from the evidence above that the Veteran had been treated with medication for diabetes at one point during the pendency of the appeal, and the condition resolved at which point the medication was stopped. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the current disability requirement 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 if the disability resolves prior to adjudication of the claim). The evidence also shows that the Veteran continued to be monitored for high blood sugar. In light of this evidence and by resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for DM, II, on a presumptive basis, is granted for substitution benefit purposes. 38 C.F.R. § 3.309(e). Sexual Dysfunction The Veteran’s sexual dysfunction, claimed as erectile dysfunction, is reflected in medical records dating back to the 1990s. In this regard, an August 1996 VA general note contains the Veteran’s report that he had sexual dysfunction with Zoloft. There is also an April 1997 VA general note showing a plan to increase the Veteran’s dose of trazadone and to add a prescription for Activan to use occasionally to increase the Veteran’s libido. In addition, an August 2009 VA examination report notes that the Veteran’s sexual dysfunction was a side effect of his medication which at the time was listed as trazadone and bupropion. The medication shown above was prescribed for the Veteran’s psychiatric disabilities. In light of this and the fact that the Veteran was service connected for an acquired psychiatric disability to include PTSD, anxiety and depression, service connection for sexual dysfunction is warranted as proximately due to or caused by his service-connected acquired psychiatric disability to include PTSD, anxiety and depression. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.310. Earlier Effective Date for the Grant of Service Connection for an Acquired Psychiatric Disability Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. If the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i). Unless specifically provided, the effective date will be assigned based on the facts as found. 38 C.F.R. § 3.400 (a). Regarding reopened claims, the effective date of an award of disability compensation based on new and material evidence received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(2). See also Washington v. Gober, 10 Vet. App. 391, 393 (1997) (“The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application.”); Wright v. Gober, 10 Vet. App. 343, 346-47 (1997) (holding that an application that had been previously denied could not preserve an effective date for a later grant of benefits based on a new application). The effective date of an award of disability compensation based on a reopened claim under the provisions of 38 C.F.R. §§ 3.109, 3.156, 3.157, and 3.160(e) shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (r). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. Here, the Veteran filed his claim for service connection before March 24, 2015, so the regulations regarding informal claims are for consideration. Under the former legal authority, any communication or action, indicating an intent to apply for one or more benefits under 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 (a) (in effect prior to March 24, 2015). A final adjudicated claim is defined as an application, formal or informal, which has been allowed or disallowed by an agency of original jurisdiction. 38 C.F.R. § 3.160 (d). Such an action becomes “final” by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earliest. Id. The appellant and her representative disagree with the assigned effective date of February 5, 2004, for the grant of service connection for the Veteran’s service-connected psychiatric disability. They assert that the date should go back to the date of the Veteran’s initial claim for service connection for PTSD in 1995. By way of background, the Veteran initially filed a claim for service connection for PTSD in February 1995 and the AOJ denied this claim in April 1996. The Veteran appealed this decision to Board and in September 1998, the Board denied the claim on the basis that there was no clear diagnosis of PTSD and no verified stressor. In October 1998, the Veteran filed to reopen a claim for service connection for PTSD which the AOJ denied in August 1999. The Veteran initiated an appeal of this decision by filing a notice of disagreement in August 1999, and the AOJ issued a statement of the case in October 2000. However, this appeal was not perfected as the Veteran did not file a substantive appeal. See 38 C.F.R. § 20.200. The Veteran thereafter submitted a new claim for service connection for PTSD on February 5, 2004, which the AOJ denied in November 2004. The Veteran appealed this decision to the Board and in January 2010, the Board denied the claim. The Veteran appealed the January 2010 Board decision to the Court of Appeals for Veterans Claims (Court) and in a Court Order in July 2010, the Court granted a JMPR filed by the parties. The Court Order vacated only that portion of the Board decision that denied service connection for a psychiatric disability other than PTSD which was included in the adjudication of the appellant’s claim for service connection for PTSD. See Clemmons v. Shinseki, 23 Vet. App. 1 (2009). Consequently, the portion of the January 2010 Board decision that denied service connection for PTSD was not disturbed. In March 2010, the Veteran filed to reopen a claim for service connection for PTSD which the AOJ granted in May 2011, effective in March 2010. In a May 2013 rating decision, the AOJ granted service connection for a psychiatric disability other than PTSD, that is, for depression and anxiety, effective February 5, 2004. The AOJ went on to note that it would be pyramiding to rate each service-connected psychiatric disability separately and assigned the Veteran a 70 percent rating for an acquired psychiatric disability to include PTSD, anxiety and depression, effective February 5, 2004. See 38 C.F.R. § 4.14. In light of the factual background laid out above, the earliest date that service connection can be granted for PTSD is the Veteran’s March 2010 claim. This is the earliest date that the Veteran expressed an intent to reopen the previously denied claim by the Board in January 2010 for service connection for PTSD. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(2). The earliest date upon which service connection can be granted for a psychiatric disability other than PTSD, diagnosed as anxiety and depression, is the February 5, 2004, date that the Veteran filed to reopen his claim for service connection for a psychiatric disability, claimed as PTSD. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(2). As noted, the August 1999 rating decision that denied to reopen service connection for a psychiatric disability, claimed as PTSD, is final. The finality of this rating decision was noted by the Board in a later decision in May 2007 at which time the Board reopened the claim for service connection for a psychiatric disability, claimed as PTSD, and remanded the underlying issue of service connection for additional development. There is no evidence following the August 1999 final decision and prior to February 5, 2004, that shows the Veteran’s intent to reopen this claim. Moreover, it has not been alleged that there is clear and unmistakable error in the August 1999 rating decision. The appellant’s representative asserts that an exception to the finality of decisions under to 38 C.F.R. § 3.156(c) applies. This regulation provides that VA will reconsider a previously denied final claim if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. The provision further provides that an award made based all or in part on such records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156(c)(3). The appellant’s representative argues that it was not until military records were received in July 2009 showing that the Veteran served in a combat area in Vietnam that the AOJ granted service connection for PTSD. He refers to an August 2010 VA memorandum which verified the Veteran’s stressors to support this contention. Accordingly, he asserts that under 38 C.F.R. § 3.156(c), the effective date of the grant for service connection for the Veteran’s PTSD should go back to his initial claim in February 1995. The Board disagrees. First, service personnel records are on file as early as May 1995 that show that the Veteran participated in Operation Kingfisher in Vietnam and thus served in a combat area. Indeed, a VA PTSD examiner in December 1995 noted that the Veteran served in Vietnam and he relayed the Veteran’s general statement of coming under fire and of being terrified. However, he went on to find that the Veteran did not meet the criteria for PTSD because he did not give a reliable history of exposure to traumatic events. Accordingly, the Board finds the records that were received in July 2009 confirmed what was already noted in the evidence, that the Veteran served in a combat area. Moreover, as the AOJ explained in the August 2010 VA memorandum, it relied on the amended VA rules for adjudicating PTSD claims to find that the Veteran had verified stressors. In this regard, effective July 13, 2010, VA revised its regulations to relax the evidentiary stressor verification requirements when a veteran was exposed to fear of hostile military or terrorist activity. See 75 Fed. Reg. 39843 (July 13, 2010) (codified at 38 C.F.R. § 3.304 (f)(3)). See also 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective date of applicability of 38 C.F.R. § 3.304 (f)(3) to July 13, 2010). More specifically, the regulation provides that if a stressor claimed by the veteran is related to the veteran’s fear of hostile military activities and a VA psychiatrist or psychologist contracted by VA confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the Veteran’s lay testimony alone may establish the occurrence of the claimed stressor. Id. As noted, this relaxed evidentiary stressor requirement did not become effective until July 13, 2010. Accordingly, even assuming arguendo that the exception under 38 C.F.R. § 3.156(c) applies with respect to additional service records that were received after 1995, it would not allow for an effective date for the grant of service connection for PTSD any earlier than the July 13, 2010, date that entitlement arose. 38 C.F.R. § 3.156(c)(3). That notwithstanding, the Veteran was given an effective date in March 2010 for the grant of service connection for PTSD which is the date that he filed his claim to reopen. For the foregoing reasons, the preponderance of the evidence is against the claim for an effective date earlier than February 5, 2004, for the grant of service connection for an acquired psychiatric disability to include PTSD, depression and anxiety. As such, the doctrine of reasonable doubt does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Rating Greater than 70 Percent for an Acquired Psychiatric Disability The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130, Diagnostic Code 9411, is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran’s condition that affect the level of the Veteran’s occupational and social impairment. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms including, but not limited to: 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; and memory loss for names of close relatives, own occupation, or own name. Id. The appellant’s representative asserts that the Veteran had total occupational and social impairment due to his service-connected psychiatric disability and that a 100 percent rating is warranted. He asserted that the Veteran had not been able to work due to his psychiatric disability and he said that the February 2015 private psychologist’s opinion supports this assertion. After considering the facts of this case with the pertinent rating criteria, the Board finds that at no point during the pendency of this appeal were the Veteran’s psychiatric symptoms of sufficient severity to satisfy the criteria for a 100 percent rating and it therefore cannot be said that his disability picture more nearly approximated that contemplated for the 100 percent rating. Findings at an August 2009 VA examination show that the Veteran had an evasive thought process, but there was no indication that he had gross impairment of thought process or communication. He did not exhibit grossly inappropriate behavior, was not violent, and had good impulse control. Additional findings revealed that he was oriented to person, place and time, and he had no delusions. He was noted to have a history of suicidal ideation, but not currently. He was also noted to have disheveled clothes and to not meet minimum hygiene standards. Regarding memory, the examiner noted that the Veteran was not able to give any specific details about his tour in Vietnam, but that “surprisingly” “memory screeners” showed no significant impairment and the Veteran was quite up to date and accurate regarding recent events in the media and historical events that were not personal in nature. The examiner diagnosed the Veteran as having mood depressive disorder and anxiety disorder, but not PTSD. He found that the Veteran did not have total social and occupational impairment, but rather had reduced reliability and productivity due to his depressive and anxiety symptoms. In terms of employment, the Veteran reported that he stopped working in 2003 due to liver disease. The Veteran reported at a March 2011 VA psychiatric examination that he had been married to his current wife for 9 years with no violence. He was noted to have had two prior marriages that involved violence. He reported having “ok” relationships with other family members and he denied having friends, only “associates”. He said that he attended church one to two times a month. Findings were negative for suicide attempts or history of violence/assaultiveness. On examination the Veteran was clean, neatly groomed and appropriately dressed. He was oriented to person and place but not to time since he incorrectly guessed that the current time was 5:00pm or 5:30pm when it was actually 6:00pm. He was not found to have hallucinations, inappropriate behavior or obsessive/ritualistic behavior. He was noted to have suicidal thoughts, but no intent stating that his family was a protective factor. He had good impulse control and episodes of violence. He was able to provide most, but not all remote data as well as recent data about himself. Regarding employment, the Veteran reported that his longest held job was 6 years and that he had been suspended from his job at the post office for “not reporting to work”. The examiner diagnosed the Veteran as having PTSD. He opined that the Veteran’s PTSD was not productive of total occupational and social impairment, but rather caused deficiencies in most areas. The Veteran reported at a November 2011 VA psychiatric examination that there had been no major changes in his social, economic, personal sphere since his last examination other than increased social and interpersonal withdrawal. Mental status findings included depressed mood, chronic sleep impairment, short and long-term memory impairment, disturbances of motivation and mood, inability to establish and maintain effective relationships and neglect of personal appearance and hygiene. The examiner added that it appeared that the Veteran’s hepatic encephalopathy was aggravated by his service-connected PTSD which manifests the same symptoms. He said that the Veteran had a very constricted social support network and was not able to work due to difficulty with remote and short-term memory impairment, motivation, anergia, intrusive memories and crying spells. He did not find that the Veteran had total social and occupational impairment due to his psychiatric disability, but rather had deficiencies in most areas. A private psychologist provided a psychological evaluation of the Veteran in February 2015. He relayed the Veteran’s report that his medication was very sedating and that he did not do “too much” in terms of activity. He said that he was up most mornings by 10am to eat and he was able to bathe, dress, groom, and take care of his personal hygiene without help. He also said that on occasion he visited his 91-year-old mother, went to church, and accompanied his wife to make basic purchases for the family. He described himself as socially isolated, irritable, and emotionally withdrawn and he added that he was basically accepted and cared for emotionally by his wife who understood his condition. The examiner assessed him as having total occupational impairment due to his history of underemployment and his receipt of SSA disability benefits (an SSA transmittal determination shows that he was awarded disability benefits effective in December 2004 due to affective disorders and anxiety-related disorders). The examiner also said that the Veteran had total social impairment due to his multiple marriages and history of homelessness. He noted that the Veteran had been unable to consistently provide a stable living situation for himself. Although the Veteran had difficulty establishing and maintaining effective social relationships and he suffered from depressed mood and anxiety, he also had the support of his family, particularly his wife. Moreover, he occasionally visited family members whom he did not live with and he went to church. He also accompanied his wife on occasion to make basic purchases for the family. In addition, the examination reports consistently show that the Veteran could efficiently converse with the VA examiners, and could generally manage his daily activities on his own. He was not psychotic or out of touch with reality. Furthermore, after examining the Veteran and reviewing his claims file, the August 2009, March 2001 and November 2011 VA examiners all concluded that the Veteran’s psychiatric disability was not productive of total social and occupational impairment. With respect to the February 2014 private psychologist’s opinion that the Veteran’s psychiatric disability was productive of total social and occupational impairment, he relied on the Veteran’s history of homelessness and multiple marriages. However, as the evidence shows, he also maintained a longstanding relationship with his third wife that lasted until his death. In this regard, VA treatment records in 2011 note that the Veteran had been married for 9 years and they show that he had been in a stable living arrangement during that period. The fact that the Veteran was unable to work due to his service-connected disabilities, particularly his psychiatric disability, is evident by the fact that he was awarded a TDIU effective in February 2004. 38 C.F.R. § 4.16. In sum, the Board finds that the Veteran’s psychiatric disability to include PTSD, anxiety and depression is not shown to have manifested the type, extent and severity of symptoms demonstrating “total occupational and social impairment” within the meaning of the rating schedule at any point during the pendency of this appeal. 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 claim for substitution purposes, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). Earlier Effective Date for TDIU The appellant and her representative disagree with the assigned effective date of April 10, 2004, for the Veteran’s award of a TDIU and Chapter 35 DEA benefits awards, but have not asserted any specific allegation as to why earlier effective dates are warranted. The AOJ assigned this date since it is the date following the last day of the Veteran’s employment. A TDIU will be granted when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his 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 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 (a). Where those 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 by reason of service-connected disabilities, and consideration is given to the veteran’s background including his employment and educational history. 38 C.F.R. §§ 3.321 (b), 4.16(b). Regarding effective dates, a claim for entitlement to a TDIU is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). Therefore, an effective date of a TDIU claim may be awarded during the one-year period prior to receipt of the claim if it is factually ascertainable that an increase in disability had occurred during that one-year period. Otherwise, the effective date will be the date of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(2). In May 2011, the RO granted service connection for PTSD and assigned a 30 percent rating. At that time the Veteran was also service connected for a left foot disability rated at 10 percent. His combined rating was 40 percent. In December 2011, the Veteran filed a claim (VA Form 21-8940) for a TDIU which he attributed to PTSD, anxiety and a left foot disability. He reported that he had worked between 30 and 40 hours a week as a truck driver from January 1999 to January 2000, and as a full time (40 hours a week) truck driver from January 2001 to May 27, 2004. He said that he stopped working on May 27, 2004. However, information obtained from his last (contract) employer shows that he last worked on April 9, 2004. In May 2013, the AOJ granted the Veteran service connection for anxiety and depression and assigned him a 70 percent rating for his service-connected psychiatric disability, to include anxiety, depression and PTSD. This rating when combined which his 10 percent rating for his left foot disability resulted in a combined rating of 80 percent. The ratings were made effective on February 5, 2004, which is the date that the Veteran filed to reopen his claim for service connection for a psychiatric disability, claimed as PTSD. These ratings satisfy the schedular requirements for a TDIU. Moreover, the medical evidence on file at the time supports the Veteran’s inability to work due to service-connected disability. However, as noted, the evidence shows that the Veteran continued to work full time as a truck driver until April 9, 2004, at the earliest, and thus he is not shown to have been precluded from obtaining or maintaining substantially gainful employment prior to April 10, 2004. As such, the AOJ assigned the Veteran an effective date of April 10, 2004, for the TDIU based on the date that entitlement arose. When considering that the proper effective date is the later of date of claim (May 2011) or date that entitlement arose (April 10, 2004), there is no basis to grant an effective date any earlier than April 10, 2004, for the Veteran’s TDIU award. Earlier Effective Date for DEA Benefits DEA benefits are payable to the child or surviving spouse of a Veteran will have basic eligibility if the following conditions are met: (1) The Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran’s death; or (4) the Veteran died as a result of a service-connected disability. 38 U.S.C.A. § 3510; 38 C.F.R. § 3.807 (a). Prior to April 10, 2004, the Veteran did not have a permanent total service-connected disability. As such, he did not meet the schedular requirements for DEA. Therefore, the basic eligibility conditions for DEA were not met prior to April 10, 2004, making April 10, 2004, the earliest date that all eligibility requirements were met. As basic eligibility was not met prior to April 10, 2004, an effective date prior to this date for the award of basic eligibility for DEA benefits must be denied for substitution benefit purposes. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Shawkey, 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.