Citation Nr: 20035192 Decision Date: 05/20/20 Archive Date: 05/20/20 DOCKET NO. 10-45 949 DATE: May 20, 2020 ORDER Entitlement to service connection for hypertension as due to exposure to herbicide agents is granted. Entitlement to service connection for a heart disability, diagnosed as atrial fibrillation, secondary to the service-connected hypertension and anxiety disorder is granted. Beginning September 22, 2009, a 70 percent rating for anxiety disorder, but not higher, is granted. Entitlement to a rating higher than 60 percent for a right knee disability, status-post total knee replacement, is denied. Beginning September 22, 2009, entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. An effective date of September 22, 2009, for the grant of entitlement to Dependents Educational Assistance (DEA), is granted. REMANDED Entitlement to service connection for hepatitis C, to include as secondary to service-connected disabilities, is remanded. Entitlement to a TDIU prior to September 22, 2009, is remanded. Entitlement to an award of DEA benefits prior to September 22, 2009. is remanded. FINDINGS OF FACT 1. The Veteran’s exposure to herbicide agents during service in the Republic of Vietnam during the Vietnam era is presumed; the medical evidence confirms a current diagnosis of hypertension; epidemiologic evidence supports positive association between hypertension and herbicide agent exposure; and, the evidence is in equipoise as to whether the currently diagnosed hypertension is related to his conceded exposure to herbicide agents during Vietnam service. 2. Resolving all doubt in the Veteran’s favor, the diagnosed atrial fibrillation is caused and or aggravated by his service-connected hypertension and anxiety disorder. 3. Beginning September 22, 2009, and with resolution of any doubt in the Veteran’s favor, his service-connected anxiety disorder resulted in symptoms that approximate occupational and social impairment with deficiencies in most areas. 4. Beginning January 1, 2014, the Veteran’s right knee disability status post total knee replacement is rated as the maximum schedular rating and referral for extraschedular consideration is not warranted. 5. Beginning September 22, 2009, the Veteran has been rendered unable to maintain gainful employment due to his service-connected disabilities. 6. Given the Board’s decision herein, granting entitlement to a TDIU, effective September 22, 2009, the Veteran is eligible for DEA under 38 U.S.C. Chapter 35, effective this date. CONCLUSIONS OF LAW 1. The criteria to establish service connection for hypertension are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for service connection for a heart disability diagnosed as atrial fibrillation are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2019). 3. Beginning September 22, 2009, the criteria for a 70 percent rating, but not higher, for the service-connected anxiety disorder have been approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code (DC) 9400 (2019). 4. Beginning January 1, 2014, the criteria for a rating higher than 60 percent for a right knee disability status-post total knee replacement are not met. 38 U.S.C. §§ 1155, 3.321, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.30, 4.40, 4.45, 4.71a, Diagnostic Codes 5055, 5160-5173 (2019). 5. Beginning September 22, 2009, the criteria for an award of TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a)(b) (2019). 6. Beginning September 22, 2009, the criteria for eligibility to DEA under 38 U.S.C. Chapter 35 are met. 38 U.S.C. §§ 3500, 3501, 5110 (2012); 38 C.F.R. §§ 3.400, 3.807 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to June 1970, to include service in the Republic of Vietnam. Procedural History In October 2007, the Veteran filed a claim for increased rating for a right knee disability and service connection claims for an acquired psychiatric disorder, hypertension, a heart disability, and hepatitis C. Thereafter, in an October 2008 rating decision, the RO denied the service connection claims for hypertension, heart disability, and hepatitis C, denied a rating higher than 10 percent for a right knee disability, and granted service connection for an acquired psychiatric disorder assigning it a 10 percent disability rating. The Veteran timely appealed the October 2008 rating decision in September 2009, a statement of the case (SOC) was issued in September 2010, and the Veteran perfected his appeal in November 2010. Prior to the Board’s decision, in a January 2013 rating decision, the RO granted a temporary total (100 percent) rating for the right knee disability from November 14, 2012, and 30 percent from January 1, 2014, after the Veteran underwent a total knee replacement surgery. In April 2013, the Veteran testified at a Travel Board hearing before a Veterans Law Judge who is no longer employed at the Board. A transcript of the hearing is associated with the claims file and had been reviewed. In November 2015, he was offered the opportunity for an additional hearing; however, he declined. In August 2013, the Board remanded all issues for further development, to include obtaining outstanding records and providing the Veteran with VA examinations. Thereafter, in a February 2014 rating decision, the RO increased the rating for an acquired psychiatric disorder to 50 percent, effective December 19, 2013, the date of the VA examination. A supplemental statement of the case (SSOC) was issued the same day. In subsequent April 2014 correspondence, the Veteran’s representative raised the issue of entitlement to a TDIU. In May 2014, the Board denied a rating higher than 10 percent for a right knee disability prior to November 14, 2012 but granted a separate 10 percent rating for instability of the right knee during this period. The Board also denied a rating higher than 10 percent for anxiety disorder prior to September 22, 2009, assigned the 50 percent rating effective that date, found that a rating higher than 50 percent was not warranted, and lastly, concluded that referral for extraschedular consideration was not warranted. In addition, the Board remanded the service connection claims for hypertension, heart disability, and hepatitis C for further development, increased rating for a right knee disability from January 1, 2014, forward, and entitlement to a TDIU. In a July 2014 rating decision, the RO implemented the Board’s grant of increased rating for anxiety disorder and assigned a 50 percent, effective September 22, 2009. The decision also assigned a separate 10 percent rating for right knee disability from 2007 to 2012 (prior to the assignment of a temporary total rating). The Veteran timely appealed the May 2014 Board decision to the United States Court of Appeals for Veterans Claims (Court) and in a December 2014 Order, the Court granted a Joint Motion for Partial Remand (JMPR), which found that a remand was necessary only with respect to the Board’s denial of a rating higher than 50 percent for anxiety disorder from September 22, 2009, forward. The JMPR specifically noted that the Veteran abandoned the issues of entitlement to a rating higher than 10 percent for anxiety disorder prior to September 22, 2009 as well as a rating higher than 10 percent for a right knee disability prior to November 14, 2012. In January 2015, the Board remanded the issue of entitlement to a rating higher than 50 percent for anxiety disorder for a new VA examination and noted that other issues remanded by the Board in May 2014 were still pending further development. In an April 2015 rating decision, the RO increased the right knee disability to 60 percent effective July 24, 2014 and denied entitlement to a TDIU. A SSOC for the issues of a rating higher than 30 percent from January 1, 2014 to July 24, 2014 and higher than 60 percent thereafter for right knee disability, service connection for hypertension, heart disability, and hepatitis C, as well as entitlement to a TDIU. A SSOC for the issue of a rating higher than 50 percent for anxiety disorder from September 22, 2009, forward. In February 2016, the Board issued another decision regarding the issues on appeal. Initially, for reasons unclear to the Board, it improperly took jurisdiction over the issue of a rating higher than 10 percent for anxiety disorder prior to September 22, 2009 despite the Veteran specifically abandoning this issue after appealing the Board’s May 2014 decision to the Court. In any event, the Board assigned a 30 percent rating for the period on appeal prior to September 22, 2009 and again denied a rating higher than 50 percent thereafter. The Board granted a 60 percent rating for a right knee disability from January 1, 2014 instead of July 24, 2014 and denied a separate rating for instability subsequent to the total knee replacement. Lastly, the Board again remanded the issues of service connection for hypertension, heart disability, and Hepatitis C, as well as entitlement to a TDIU for further development. A February 2016 rating implemented the grant for a 30 percent rating for anxiety disorder from October 9, 2007 to September 22, 2009 and a 60 percent for a right knee disability from January 1, 2014, forward. The Veteran timely appealed the February 2016 Board decision to the Court and by a September 2016 Order, the Court granted a JMPR, finding that the Board failed to consider probative evidence regarding the denial of a rating higher than 50 percent for anxiety disorder from September 22, 2009, forward. The JMPR did not disturb any other part of the Board’s decision. In May 2017, the Board remanded the issue of entitlement to a rating higher than 50 percent for anxiety disorder from September 22, 2009, forward for a new VA examination despite the JMR only asking that the Board consider specific probative evidence. In addition, for reasons unclear to the Board, it listed additional issues not on appeal on the cover letter of the decision and failed to discuss any of these issues in the remand portion of the decision. In an August 2018 rating decision, the RO granted a separate noncompensable rating for a right knee scar and entitlement to a TDIU effective January 1, 2014. SSOCs were issued in August 2018 for the issues of a rating higher than 50 percent for anxiety disorder from September 22, 2009, forward, a rating higher than 60 percent for a right knee disability, and service connection for hypertension, heart disability, and hepatitis C. In October 2018, the Board denied a rating higher than 50 percent for anxiety disorder from September 22, 2009, forward, to include extraschedular rating. The Board also remanded the issues of service connection for hypertension, heart disability, and hepatitis C, as well as the issue of a rating higher than 60 percent for a new VA examination despite the Veteran being in receipt of the highest possible rating. In January 2019, the Veteran’s attorney submitted a notice of disagreement with the effective date assigned for the award of a TDIU. The Veteran timely appealed the October 2018 Board decision that denied a rating higher than 50 percent for anxiety disorder from September 22, 2009, forward to the Court, and by a September 2019 Order, the Court granted an August 2019 JMPR, which found that the Board failed to address probative evidence that showed that the psychiatric disorder more nearly approximated a 70 percent rating and also erred in not considering entitlement to a TDIU prior to January 1, 2014 given the holding in Harper v. Wilkie, 30 Vet. App. 356, 359 (2018). In January 2020, the RO issued a SSOC for the issues of service connection for hypertension, heart disability, and hepatitis C, and a rating higher than 60 percent for a right knee disability. Service Connection for Hypertension The Veteran asserts that his hypertension is related to exposure to herbicide agents during service in Vietnam. The Veteran has a current diagnosis of hypertension. See e.g., February 2014 VA examination report. As already established, on the issue of in-service incurrence, the Veteran is presumed to have been exposed to herbicide agents based on his service in Vietnam during the applicable time period. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA laws and regulations provide that, if a veteran was exposed to herbicide agents during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32, 395-32, 407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21, 260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). Hypertension is not one of the diseases listed under 38 C.F.R. § 3.309(e). However, the National Academies of Sciences, Engineering, and Medicine, on November 15, 2018, upgraded hypertension from “limited” evidence to the category of “sufficient” evidence of an association from its previous classification in the “limited or suggestive” category,” indicating that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and exposure to herbicides, including Agent Orange. See National Academy of Science November 2018 update report titled, Veterans and Agent Orange Update 11 (2018). The Board finds the study provided by the NAS, which is comprised of experts in field of science, is probative evidence as to the issue at hand. Based on this relatively new scientific evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s currently diagnosed hypertension is related to his conceded exposure to herbicide agents while serving in Vietnam. As such, the Board finds that all elements of service connection for hypertension are met, and the appeal will be granted. Service Connection for Atrial Fibrillation Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active 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). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2019). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability. See 38 C.F.R. § 3.310(b) (2019); Allen v. Brown, 8 Vet. App. 374 (1995). The Veteran has a currently diagnosed heart disability diagnosed as atrial fibrillation. See e.g., April 2019 VA examination report. Upon review, the Board finds that the evidence is at least in equipoise regarding whether the diagnosed atrial fibrillation was caused and/or aggravated by the service-connection hypertension and anxiety disorder. In so finding, although the evidence showed no correlation between the Veteran’s service, to include conceded exposure to herbicide agents, and the diagnosed atrial fibrillation, the competent medical evidence suggests that the atrial fibrillation was caused by the service-connected hypertension and anxiety disorder or at the very least aggravated by these disabilities. Specifically, the May 2016 VA examiner explained that frequent causes of atrial fibrillation include alcohol access and hypertensive heart disease. Here, the Veteran’s alcohol abuse had been associated with the service-connected anxiety disorder, and as discussed above, the Board granted service connection for hypertension. Notably, in a recent precedent decision, the Court held that permanent worsening is not a requirement for secondary service connection of a non-service-connected injury or disease. See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). Here, a review of the medical evidence suggests that at the very least, the Veteran’s atrial fibrillation was aggravated by the service-connected hypertension and anxiety disorder. Accordingly, resolving reasonable doubt in the Veteran’s favor, the Board finds that the evidence is at least in equipoise as to whether the currently diagnosed atrial fibrillation was caused and/or aggravated by the service-connected hypertension and/or anxiety disorder. Increased Rating for Anxiety Disorder The criteria for rating psychiatric disabilities, other than eating disorders, are set forth in the General Rating Formula (General Rating Formula) for Mental Disorders. See 38 C.F.R. § 4.130. Under the General Rating Formula, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted if the evidence establishes there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and/or inability to establish and maintain effective relationships. Id. A 100 percent rating (total occupational and social impairment) is warranted due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term “such as” in the rating criteria 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). Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Board recognizes that the United States Court of Appeals for Veterans Claims (Court) in Mauerhan, 16 Vet. App. 436, stated that the symptoms listed in VA’s general Rating Formula for mental disorders is 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; however, the Court further indicated that, without those examples, differentiating between rating evaluations would be extremely ambiguous. When it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant’s favor and the symptoms in question must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) abandoned the Global Assessment of Functioning (GAF) scale and that VA has formally adopted the DSM-5, GAF scores are inapplicable to assign a psychiatric rating in cases where the DSM-5 applies when the appeal was certified after August 4, 2014. This appeal was pending prior to August 4, 2014, and as such, both DSM-IV and DSM-V apply. Regardless, however, because of the Court’s emphatic pronouncement in Golden that the GAF scores are methodologically flawed and are particularly unreliable as applied to psychiatric disorders, in this decision, the Board will place no reliance on GAF scores for rating this Veteran’s anxiety disorder. As discussed in detail above, the rating period on appeal before the Board is from September 22, 2009, forward. For this entire rating period on appeal, the Veteran’s anxiety disorder is rated as 50 percent disabling. For the reasons expressed below, the Board finds that the Veteran’s anxiety disorder symptoms more nearly approximated occupational and social impairment with deficiencies in most areas for the entire rating period on appeal beginning September 22, 2009. According to September 2009 VA mental health treatment records, the Veteran presented to the emergency room with complaints of Oxycodone withdrawal and suicidal ideation. He described his mood as “anxious but ok” and indicated that he felt that way for one day. Upon mental status examination, the mental health professional noted that the Veteran was dressed in clean hospital pajamas with good grooming. He was fully alert and oriented. No psychomotor agitation, retardation, or involuntary movements were noted. Speech was normal, thoughts were organized, and goal directed, and thought content was negative for delusions, obsessions, preoccupations, or phobias. Mood was described as anxious but okay with an appropriate affect. The Veteran denied having suicidal or homicidal ideation, intent, or plan. He denied having hallucinations and did not appear to be responding to internal stimuli. Insight and judgment were fair. During the April 2013 Board hearing, the Veteran stated that he did not like to be around people or in crowds and that he did not trust anybody other than veterans. His hobbies included restoring classic cars. He declined having panic attacks and reported occasional problems sleeping. He added that he did not have suicidal tendencies but had homicidal tendencies, which he thought were “normal.” He noted that he worked alone and had his own business as a handyman, but then added that at this point, he was receiving disability benefits and was no longer working. In December 2013, the Veteran underwent a VA mental disorder examination, at which time the examiner rendered a diagnosis of generalized anxiety disorder. In terms of social impairment, the Veteran stated that he had a good relationship with his younger sister but no relationship with his older sister. He stated that he had no friends and that he used to play bowling on a team, but it became expensive, so he quit three years earlier. He was married for forty-two years and described the marriage as fantastic. He had one son and described their relationship as excellent. He reported that he went to the movies and the beach and did jigsaw puzzles with his spouse. He attended church approximately six times a year and visited tourist attractions. Lastly, he noted that he felt uncomfortable around people. In terms of occupational impairment, the examiner noted that the Veteran last worked seasonally at Adventure Island every summer picking up trash. He stated that he worked seven hours per day due to his leg problems and quit his construction job five years earlier because of his knee problem. He then began doing odd jobs for his neighbors. He reported that he had not done additional jobs because he had a hard time climbing a step ladder and did not get along well with others on the job. The examiner identified psychiatric symptoms of depressed mood; anxiety; suspiciousness; mild memory loss; disturbances of motivation and mood; and, difficulty in establishing and maintaining effective work and social relationships. In addition, upon mental status examination, the examiner noted that the Veteran was adequately groomed and dressed in clean appropriate attire and his speech was normal. His mood was described as “ok” and affect was euthymic and congruent with mood based on demeanor and conversational content. He was fully oriented, recent and remote memory were intact, and he demonstrated no deficits in concentration. Thought process was coherent, logical, and goal oriented and he did not report any hallucinations, delusions, or illusions. Insight and judgment were fair. The examiner noted that the Veteran was capable of managing his financial affairs. The examiner concluded that the Veteran’s anxiety disorder resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. In July 2015, the Veteran underwent an additional VA mental disorders examination, at which time the examiner confirmed a diagnosis of generalized anxiety disorder. The examiner added that the disorder was with some depressive symptoms that were apparently related to health conditions and the impact they have on the Veteran’s life. In terms of social impairment, the Veteran reported that he lived with his spouse of forty-three years and had an adult son and a grandchild that lived nearby and visited on occasion. He reported that he watched a lot of television, did some yardwork, and had a muscle car he restored and enjoyed driving around. He added and he and his spouse stick to themselves and occasionally would go out to work and a Saturday matinee were there are no people. He stated, “I’m no good around other people, and it’s been that way since I got home from Nam.” He denied being a member of any clubs and/or organizations and noted that he had one friend that he saw once or twice a week. He added that on three occasions he felt that he was having a nervous breakdown, which he described as feeling anxious when he could not readily remember the date or recognize where he was. In terms of occupational impairment, the Veteran reported that he was not working. He was most recently employed part time at Adventure Island in the past spring through May 2015. This was a seasonal work two to three days a week. In this regard, he added that he did not like “people in general,” did not “get along well with them,” and picked who he wanted to talk to. The feedback he received was that he did the job well and had a note that said he did outstanding work. The examiner identified symptoms of depressed mood; anxiety; chronic sleep impairment; difficulty in establishing and maintaining effective work and social relationships; and, difficulty in adapting to stressful circumstances, including work or a worklike setting. Upon mental status examination, the Veteran was fully oriented and dressed appropriately with good hygiene and grooming. His mood was dysphoric and affect dysthymic and anxious, blunted in range, and appropriate to topic. Speech was normal and thought process was logical and goal-directed with no evidence of delusions or hallucinations. There was no grossly inappropriate behavior and memory, attention, and concentration were without obvious impairment. Insight and judgment were grossly intact. The Veteran’s mental health did not compromise his ability to complete all activities of daily living and he denied having suicidal or homicidal ideation. The examiner noted that the Veteran was capable of managing his financial affairs. The examiner concluded that the Veteran’s anxiety disorder resulted in occupational and social impairment with deficiencies in most areas. In May 2016, the Veteran underwent an additional VA mental disorders examination, at which time the examiner rendered diagnoses of generalized anxiety disorder and depressive disorder due to another general medical condition. However, the examiner noted that it was not possible to differentiate what symptoms were attributable to each diagnosis. In terms of social impairment, the Veteran reported that he had a close relationship with his younger sister and a somewhat strained relationship with his older sister. He did not do much for enjoyment except watching television but went to the beach with his spouse a couple of times a year and to dinner once a month. He added that he did not have a lot of energy. His relationship with his spouse and son was good. In terms of occupational impairment, the Veteran denied undergoing any educational activities in the previous year. He continued to work part-time at an adventure park. The examiner identified symptoms of depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; and, difficulty in adapting to stressful circumstances, including work or a worklike setting. Upon mental status examination, the Veteran was adequately groomed and dressed and fully oriented. His mood was euthymic and affect congruent with mood. There was no deficit in concentration and memory. He did not report having any delusions, hallucinations, or illusions. Insight and judgment were good. The examiner concluded that the Veteran’s psychiatric disorders resulted in occupational and social impairment with reduced reliability and productivity. In support of his claim, the Veteran submitted a private February 2017 psychological evaluation. The private psychologist stated that the entire claims file was reviewed carefully regarding the severity of the Veteran’s anxiety disorder from September 2009 to the present. The psychologist concluded that based on review of the record, professional experience, and clinical interview with the Veteran, the anxiety disorder caused him occupational and social impairment with deficiencies in most areas since September 2009. In support of this conclusion, the psychologist cited to specific evidence of record, which illustrated symptoms such as inability to establish and maintain effective relationships and impaired impulse control. In addition, the psychologist noted that the substance abuse, to include Oxycodone that was prescribed for treatment of the service-connected right knee disability was related to the service-connected psychiatric disorder. In August 2018, the Veteran underwent an additional VA mental disorders examination, at which time the examiner confirmed diagnoses of generalized anxiety disorder and opiod use disorder, in sustained remission. Although the examiner concluded that it was possible to differentiate what symptoms were attributed to each diagnosis, it was noted that 100 percent of the social functioning was related to the Veteran’s anxiety disorder because the opiod use disorder was in sustained remission. In terms of social impairment, the Veteran noted that his relationship with his spouse was fantastic and that his relationship with his son was overall good. He stated that he had one good friend that owned a nosiness and let him clean the waiting room and that he had two other close friends in New Jersey. In general, he reported that he did not get along with others, stating, “I don’t trust people. I don’t like people.” For recreation, he noted that he sat in his recliner and watched television and played on the computer a little. He went out for breakfast with his spouse twice a week and they went to the movies and watched television together. In terms of occupational impairment, the examiner noted that the Veteran worked until three years earlier three days weekly. The Veteran added that prior to this part-time job he had his own construction business that he had to close after his knee replacement. The examiner identified psychiatric symptoms of depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; and, difficulty in adapting to stressful circumstances including work or a worklike setting. The examiner concluded that the Veteran’s anxiety disorder resulted in occupational and social impairment with reduced reliability and productivity. On review, the Board finds that a 70 percent rating is warranted for the Veteran’s service-connected anxiety disorder for the entire rating period on appeal beginning September 22, 2009. In so finding, the Board notes that the Veteran endorsed symptoms of inability to establish and maintain effective relationships, which was evident by his reports of his inability to get along with others. Although he had a good overall relationship with his family members, his spouse described impaired impulse control, anger, and irritability even over small things. He also at least in one occasion endorsed suicidal ideation and homicidal ideation. While it appears that perhaps some of his symptoms may have fluctuated in severity throughout the pendency of the appeal, he overall continued to endorse these symptoms, which are contemplated by the criteria for a 70 percent rating. In this regard, the July 2015 VA examiner and private February 2017 psychologist concluded that the psychiatric disorder resulted in occupational and social impairment with deficiencies in most areas. In addition, the most recent VA examiner identified difficulty in adapting to stressful circumstances including work or a worklike setting, which is also contemplated by the criteria for a 70 percent rating. Nonetheless, the Veteran had not been totally socially and occupationally impaired due to PTSD. He was found capable of managing his own financial affairs and appeared oriented throughout the pendency of the appeal. He presented to the examination adequately dressed and groomed. Moreover, there was no evidence of delusions or hallucinations, and although he reported impaired memory, such did not rise to the level of forgetting his own name and/or those of close relatives. Total occupational and social impairment generally requires symptoms severe enough to severely distort the individual’s perception of reality, which is not shown by the record. Overall, the Veteran’s psychiatric symptoms do not equate in severity, frequency, or duration to total occupational and social impairment, nor have the symptoms demonstrated a level of severity in symptomatology to approximate or equate to that in the symptoms listed for a 100 percent rating. Additionally, the identified psychiatric symptoms of depressed mood; chronic sleep impairment; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and, reports of suicidal ideation, are properly contemplated by the currently assigned 70 percent disability rating. In summary, the criteria for a rating higher than 70 percent, but no higher, for the service-connected anxiety disorder have been met for the entire rating period. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Increased Rating for a Right Knee Disability As noted in the procedural history discussed above, for the entire rating period on appeal, the Veteran’s right knee disability is rated as 60 percent disabling. No other diagnostic code pertaining to rating of a knee disability, to include DCs 5256, 5257, 5258, 5259, 5260, 5261, 5262, and 5263 provide a rating higher than 60 percent. 38 C.F.R. § 4.71a. The “amputation rule” provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were amputation to be performed. 38 C.F.R. § 4.68. Amputations of the lower extremity are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5160-5173. Diagnostic Code 5163 allows for a 60 percent rating for amputation of the leg with a defective stump and thigh amputation recommended. Diagnostic Code 5164 allows for a 60 percent rating for amputation of the leg not improvable by prosthesis controlled by natural knee action. For a rating higher than 60 percent, there must be amputation up to the upper third of the thigh. 38 C.F.R. § 4.71a, Diagnostic Code 5161. Such is not the case in the present appeal. Thus, while a higher percentage rating for the left lower extremity could be assigned in theory, the amputation rule precludes the receipt of compensation higher than 60 percent for a disability of the knee. Accordingly, the currently assigned 60 percent rating for the entire rating period on appeal is the highest possible rating for the Veteran’s right knee disability. Additionally, the Board finds that referral for extraschedular consideration is not warranted. Here, neither the Veteran nor his attorney provided argument as to why extraschedular rating is warranted. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) (“[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted”). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Thun at 116. In other words, the first element of Thun compares a veteran’s symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95. With respect to the first prong of Thun, the Board finds that the symptomatology and impairment caused by the Veteran’s right knee disability is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The disability manifested by painful limitation of motion with chronic residuals consisting of severe painful motion, which is specifically contemplated by the rating criteria. Specifically, DC 5055 states that a 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. In addition, any impact on the Veteran’s ability to work is contemplated by the award of a TDIU during the entire rating period on appeal. Accordingly, because the first prong of an extraschedular consideration has not been satisfied, the Board need not reach the second and steps as indicated above and referral for extraschedular consideration is not warranted. Entitlement to a TDIU Prior to January 1, 2014 As discussed above, the RO granted entitlement to a TDIU, effective January 1, 2014, which is consistent with the date the evidence showed the Veteran became unemployable due to his service-connected disabilities. The United States Court of Appeals for Veterans Claims (Court) has held that a request for TDIU is part and parcel of a higher rating when raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Harper v. Wilkie, 30 Vet. App. 356, 362 (2018) (holding that once entitlement to a TDIU is put in issue as part of a claim for a higher initial rating/increased rating and the RO grants a TDIU that does not span the entire period on appeal, the issue of entitlement to a TDIU for an earlier period is still on appeal). Here, as discussed above, the period on appeal begins on September 22, 2009. In this regard, the Board notes that a separate appeal stream that has been merged with the current appeal adjudicated the issue of entitlement to an earlier effective date prior to January 1, 2014. In this portion of the analysis, the Board finds that the issue not whether an earlier effective date is warranted but rather whether entitlement to a TDIU is warranted per the holding of Harper and as discussed by the August 2019 JMPR. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). In Moore, the Court noted that it is clear that the claimant need not be a total “basket case” before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). The Board resultantly need only determine whether his service-connected disabilities, in and of themselves, render him unemployable - again, meaning unable to obtain or maintain employment that could be considered substantially gainful versus just marginal in comparison. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered “substantially gainful employment.” 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, based on the Board’s decision herein, the Veteran met the schedular criteria for a TDIU for the entire rating period on appeal, specifically from September 22, 2009. As discussed above, the Veteran last worked in 2015; however, for the entire rating period on appeal, the Veteran’s work was marginal at best. A review of a recent Social Security Taxes Earnings submitted by the Veteran showed that the in the years in question, the Veteran’s earnings were $0 in 2009, $3,758 in 2010, $4,474 in 2011, $2,218 in 2012, $2,152 in 2013, and $3,492 in 2014. Based on this information, it is indisputable that the Veteran’s earnings during the years in question were below the poverty threshold for a single person. As such, the ultimate question is whether the Veteran inability to maintain substantial gainful employment was the result of his service-connected disabilities. After careful consideration of the record, the Board resolves all doubt in the Veteran’s favor, finding that he has been unemployable by reason of his service-connected disabilities beginning September 22, 2009. In this regard, the Board notes that in a recent precedent decision, in Ray v. Wilkie, the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). Here, the record shows that the Veteran’s educational background included one year of high school, and his work experience for decades was the construction business as a handyman. Thus, considering the Veteran’s occupational and educational background – including the fact that he always worked in the construction industry, it strains credulity to expect that he would qualify for a “light duty” position, or any other position that will not be impacted by his service-connected right knee disability and psychiatric disorder. As discussed above, the Veteran had to quit his construction business due to his right knee disability. In addition, although he had temporary part-time employment, he specifically indicated that it was solitary work that did not require him to interact with others. Furthermore, he stated that he had to stop doing even the odd jobs he attempted to do because he had a hard time climbing a step ladder and did not get along well with others on the job. The Board accordingly finds that the evidence is at least in equipoise as to whether the Veteran was unable to maintain gainful employment as a result of his service-connected right knee disability and psychiatric disorder during the entire rating period on appeal beginning September 22, 2009. Finally, neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). Earlier Effective Date for DEA Benefits Prior to January 1, 2014 Regarding the Veteran’s claim for an earlier effective date for DEA benefits pursuant to 38 U.S.C. Chapter 35, the Board finds that an earlier effective date is warranted. The Veteran was awarded eligibility to DEA effective January 1, 2014, based upon the date the RO’s grant of entitlement to a TDIU. Except as provided in subsections (b) and (c), effective dates relating to awards under Chapter 35 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C. § 5113. Subsection (b) provides that when determining the effective date of an award under Chapter 35 for an individual described in paragraph (b)(2) of 38 U.S.C. § 5113, based on an original claim, VA may consider the individual’s application as having been filed on the eligibility date of the individual if that eligibility date is more than one year before the date of the initial rating decision. For these purposes, “eligibility date” means the date on which the individual became an eligible person as defined by 38 U.S.C. § 3501 (a)(1), and “initial rating decision” means a decision by VA that establishes the Veteran’s total disability as permanent in nature. 38 U.S.C. § 5113(3). In the case of a veteran who is alive, the conditions for basic eligibility for DEA include: (1) the Veteran’s discharge from service under conditions other than dishonorable; and (2) the Veteran has a permanent total service-connected disability. 38 C.F.R. § 3.807 (a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a). Permanence of disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). The term “total disability permanent in nature” for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based on an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C. § 3501(a)(7). As the only method of eligibility for Chapter 35 benefits which is relevant to the Veteran is through having a permanent total service-connected disability, the effective date for Dependents’ Educational Assistance benefits is directly predicated on the effective date from which VA considered that the Veteran’s permanent and total disability commenced for purposes of VA benefits. See 38 C.F.R. § 21.3021(a)(iii), (p), (r). In light of the Board’s current finding that the Veteran’s service-connected disabilities rendered him unable to maintain gainful occupation and warranted entitlement to a TDIU since September 22, 2009, an effective date of September 22, 2009, for establishing eligibility for Chapter 35 benefits is also warranted. See 38 C.F.R. § 3.400 (a). REASONS FOR REMAND A remand is necessary to obtain an addendum medical opinion regarding the likely etiology of the claimed hepatitis C. In addition, a remand is needed for the RO to implement the Board’s decision herein and readjudicate the issue of entitlement to a TDIU and DEA benefits prior to September 22, 2009. Hepatitis C Upon review of the October 2014, May 2016, and March 2019 medical opinions, the Board finds that these opinions are not adequate to decide the claim. Regarding direct service connection, the Veteran stated that blood splattered on him during combat service in Vietnam; however, all of the examiners discounted the Veteran’s lay reports due to lack of documented evidence of the incident. Nonetheless, because the Veteran’s reports are of incidents that occurred during combat, documented evidence is not necessary in this case due to the combat presumption. Second, regarding secondary service connection, the March 2019 VA examiner opined that hepatitis C was less likely than not related to a service-connected condition because the Veteran denied intravenous drug use, which was the form of drug abuse associated with hepatitis C. The examiner further opined that right knee replacement and hepatitis C were medically unrelated. The examiner failed to address the issue of aggravation. Accordingly, obtaining an additional addendum medical opinion is necessary prior to deciding the claim on the merits. Effective Date Prior to September 22, 2009 for TDIU and DEA Benefits After the implementation of the Board’s decision herein, further adjudication of the issue of entitlement to an effective date prior to September 22, 2009 for TDIU and DEA is necessary as these issues are intertwined with the assignment of an initial rating for the Board’s grant herein and the issue being remanded. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Thereafter, obtain another medical opinion from an appropriate VA examiner to assist in determining the likely etiology of the claimed hepatitis C. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After a review of the record, the examiner is asked to respond to the following: (a) Is it at least as likely as not (a 50 percent or higher probability) that the diagnosed hepatitis C had its onset during service or is otherwise related to it? **In doing so, the examiner is asked to specifically address the Veteran’s competent lay assertions that he was exposed to the blood of fellow soldiers through combat, razor blades, toothbrushes, air gun injections, or tattoos. The examiner is asked to refrain from using the lack of diagnosis of documented evidence of the above during service as a rationale. Rather, explain why or why not the hepatitis C is likely related to the reported incidents in service. (b) Is it at least as likely as not (a 50 percent or higher probability) that hepatitis C was caused OR aggravated by a service-connected disability, to include hypertension, atrial fibrillation, psychiatric disorder (to include opiod abuse), and/or medication used for treatment of a service-connected disability. A complete rationale should be provided for all opinions on direct, causation, AND aggravation. 3. Thereafter, readjudicate the remanded claim, to include entitlement to an earlier effective date for TDIU and DEA benefits. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, Associate 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.