Citation Nr: 21003156 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-14 151 DATE: January 19, 2021 ORDER Entitlement to service connection for right knee disability manifested by pain is granted. Entitlement to service connection for left knee disability manifested by pain is granted. Entitlement to service connection for kidney stones is granted. Entitlement to service connection for gastrointestinal signs and symptoms due to an undiagnosed illness is granted. Entitlement to an initial 70 percent rating, but not higher, for service-connected posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to an effective date earlier than October 30, 2014 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted, subject to the laws and regulations controlling the award of monetary benefits. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for right shoulder acromioclavicular joint arthritis (right shoulder disability) is remanded. Entitlement to service connection for sleep disorder is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s right knee pain had its onset in service. 2. The evidence is at least evenly balanced as to whether the Veteran’s left knee pain had its onset in service. 3. The evidence is at least evenly balanced as to whether the Veteran’s kidney stones had their onset during service. 4. The evidence is at least evenly balanced as to whether the Veteran has current gastrointestinal signs and symptoms due to an undiagnosed illness which manifested during service. 5. For the entire period on appeal, the Veteran’s PTSD symptomatology more nearly approximated occupational and social impairment with deficiencies in most areas, but not total social impairment. 6. The evidence reflects that the Veteran filed a claim for service connection for a PTSD on October 30, 2014 and there is no earlier communication, statement, or claim, formal or informal, for service connection for a psychiatric disorder in the evidence of record. 7. The evidence is at least evenly balanced as to whether the Veteran’s service-connected disability precludes him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right knee disability manifested by pain have been met. 38 U.S.C. §§ 1110, 5107(b); 38 U.S.C. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left knee disability manifested by pain have been met. 38 U.S.C. §§ 1110, 5107(b); 38 U.S.C. §§ 3.102, 3.303. 3. The criteria for service connection for kidney stones have been met. 38 U.S.C. §§ 1110, 5107(b); 38 U.S.C. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for disability manifested by gastrointestinal signs or symptoms due to an undiagnosed illness have been met. 38 U.S.C. §§ 1110, 1117; 38 C.F.R. §§ 3.317. 5. The criteria for an initial rating of 70 percent, but not higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, diagnostic code (DC) 9411. 6. The criteria for entitlement to an effective date earlier than October 30, 2014 for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5103, 5103A, 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.400. 7. With reasonable doubt resolved in favor of the Veteran, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2003 to October 2007 with service in Southwest Asia. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from June 2015, February 2016, and August 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi which, respectively, denied among other things service connection for chronic kidney stones, bilateral hearing loss, tinnitus, right and left knee disabilities, right shoulder disability, sleep disturbance; granted service connection for PTSD, evaluating it as 50 percent disabling; and denied TDIU. In October 2015, the Veteran filed his notice of disagreement with the service connection denials, was issued a statement of the case in February 2016, and in April 2016 perfected his appeal to the Board. In June 2016 and November 2017, the Veteran, respectively, filed his notice of disagreement with the 50 percent evaluation and effective date assigned for his service connected PTSD, and with the denial of TDIU, was issued statements of the case in August 2018, and in September 2018 perfected his appeal to the Board. In his April 2016 Form 9, the Veteran requested a videoconference hearing with a Veterans Law Judge which was scheduled for September 4, 2019. However, the Veteran failed to appear without good cause shown. In a September 2020 letter,, the Veteran’s attorney informed the Board that the Veteran wished to withdraw his request for a hearing and asked that the Board decide the claim on the evidence of record. Therefore, the Board considers the hearing request withdrawn, and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d). Service Connection The Veteran’s attorney submitted a statement in October 2015 wherein he asserted that the Veteran’s right shoulder osteoarthritis, bilateral knee disabilities, bilateral hearing loss, tinnitus, sleep disturbances, digestive/gastrointestinal conditions kidney stones, and PTSD were due to service. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For veterans with service in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established under 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Under that statute and regulation, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more no later than December 31, 2021. The term Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (e)(2). The Veteran’s DD-214 reflects that the Veteran’s military occupational specialty was as an attack helicopter repairman, and that he is a recipient of the Iraq Campaign Medal among other decorations. Thus, the evidence reflects the Veteran served in Southwest Asia. For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi- symptom illness (MUCMI); and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. Under 38 C.F.R. § 3.317, a MUCMI means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). Along with the three examples of a MUCMI provided by section 1117(a)(2)(B), CFS, fibromyalgia, and irritable bowel syndrome (IBS), there is a list of signs or symptoms that may be a manifestation of an undiagnosed illness or a MUCMI that includes fatigue, gastrointestinal signs or symptoms, signs or symptoms involving the respiratory system, muscle pain, joint pain, and sleep disturbances. 38 U.S.C. § 1117 (g); 38 C.F.R. § 3.317 (b). The term “objective indications of a qualifying chronic disability” includes both “signs,” in a medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Although the Veteran is not medically trained, he is competent to report the observable manifestations of his claimed disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Hence, his own assertions may serve as support for the presence of symptoms supportive of the claimed condition as part of a Gulf War Syndrome under 38 C.F.R. § 3.317. For purposes of Gulf War undiagnosed illness claims, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317 (a)(2)(5). Right and Left Knee May 2006 service treatment records indicate that the Veteran was treated for right knee pain which occurred while playing football. October 2006 service treatment records reflect that the Veteran was treated for left knee pain, and reported a history of bilateral knee problems while stationed at Fort Carson. The Veteran’s August 2007 medical examination report upon separation is normal with no indication that the Veteran suffered from a right or left knee disability. A January 2015 mental health note reflected that the Veteran reported using opiates after suffering knee injuries in service. An April 2015 disability benefits questionnaire (DBQ) reflected that the Veteran did not have a diagnosis associated with his claimed right and left knee disabilities. The examining nurse practitioner (NP) noted that the physical examination and x-rays were normal, and that there is insufficient evidence to warrant or confirm an acute or chronic right or left knee disorder or residuals. The Veteran reported sustaining an injury to his right knee while playing football, and stated it was diagnosed as a right knee sprain. He stated that he was referred to physical therapy, but has not sought care for his right knee since service. The Veteran stated that he has shooting pain up his right knee when there is cold weather, and also reported meniscus pain. He stated that he was diagnosed with hyperextension of the left knee and was referred to physical therapy. The Veteran reported shooting pain behind his knee and in his joints a few times per month which is more pronounced in cold weather. He also stated that certain activities such as running without stretching cause pain in his right and left knee. There was no pain noted on examination with range of motion testing. The NP opined that the Veteran’s bilateral knee disabilities were less likely than not (less than a 50 percent probability) incurred in or caused by a claimed in-service injury, event or illness as the service treatment records do not show chronicity of care for a right or left knee disability or residuals, and there is no documentation regarding a knee condition or complaint in his VA treatment records. The Veteran has provided competent evidence that he currently suffers from left and right knee pain, and his service treatment records note right and left knee pain treatment in service. The Veteran has also indicated that he has suffered from right and left knee pain since service, and that he treated the pain with opiates. The Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and are within the realm of his personal knowledge. Jandreau, 492 F. 3d at 1377, n.4. There is no evidence of record that the Veteran lacks credibility, thus his statements are afforded significant probative value. The dispositive issue is whether there is a relationship between the in-service right and left knee injuries and treatment, and his current right and left knee pain. While the April 2015 NP opined that the Veteran’s right and left knee disabilities were less likely than not (less than a 50 percent probability) incurred in or caused by a claimed in-service injury, event, or illness, the NP based her opinion primarily on the fact that the Veteran’s VA treatment records do not reflect a knee condition or complaints of knee pain which is impermissible. See Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Additionally, the NP failed to take into consideration the Veteran’s statements that he used opiates to treat his knee pain after service, and has not sought care even though he was referred to physical therapy when formulating her opinion. Therefore, the April 2015 opinion is inadequate and afforded no probative weight. The Veteran has provided lay evidence of continuity of right and left knee pain since its onset in service. The Veteran has stated that he first suffered from right knee pain during service after hurting his knee playing football, and reported bilateral knee pain since being stationed at Fort Carson, and indicated that he has suffered from problems with both knees since service, stating he cannot do certain activities such as running without pain. The Veteran’s statements regarding left and right knee pain since service are competent and there is no indication that the Veteran’s statements lack credibility. See Buchanan, 451 F.3d at 1337. The provided medical opinion has been deemed inadequate and there is competent and credible lay evidence of right and left knee pain continuing since service. While the Board could remand for a new opinion, doing so could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand for additional development, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). Moreover, to the extent that the grant of service connection in this case is based primarily on lay evidence, “nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself.” Buchanan, 451 F.3d 1331, 1335. Thus, there is competent, credible lay evidence of a current right and left knee disability manifested by pain that had its onset in service. With regard to whether the current disability requirement has been met, the Federal Circuit held that pain alone can constitute disability if it causes impairment in earning capacity. Saunders, 886 F.3d at 1364-65. In this case, the evidence shows that the Veteran has right and left knee pain which restricts his ability to perform certain activities, thus causes impairment in earning capacity, which had their onset in service. Therefore, the evidence is at least evenly balanced as to whether the Veteran’s right and left knee disabilities manifested by pain is related to, or had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for right and left knee disabilities manifested by pain is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Kidney Stones April 2007 service treatment records reflect that the Veteran was treated for kidney stones and pain in his kidneys. The Veteran’s June 2007 medical history report upon discharge reflected that the Veteran noted a kidney stone or blood in his urine. The Veteran’s August 2007 medical examination report upon separation does not reflect any issues concerning kidney stones or symptomatology associated with a kidney disease. March 2014 VA treatment records reflect that the Veteran reported occasional kidney stones, and his urinalysis demonstrated some urine in his blood. April 2014 VA treatment records indicate that the Veteran reported that he passed a kidney stone one day prior to providing his laboratory work. An April 2015 DBQ reflected that the Veteran had not been diagnosed with a kidney condition, and indicated that the Veteran reported developing a problem in 2006, stating he passed a few stones while on active duty. He stated that his reports were evaluated, but no specific treatment was prescribed. The Veteran reported passing about 15 stones since service, but stated he has not sought medical care for his kidney stones. The NP noted that there were marked discrepancies in accuracy, gravity, and the actual facts noted between the Veteran’s oral history and the actual documented facts. The NP opined that the Veteran’s kidney stones were less likely than not (less than a 50 percent probability) incurred in or caused by a claimed in-service injury, event or illness. The NP noted that the Veteran was never diagnosed with a kidney stone in service, and that on his June 2007 medical examination report upon separation, the Veteran reported going to the emergency room for kidney pain and blood in his urine, but his urinalysis was normal. The NP concluded that although the Veteran provided an oral history of kidney stones, there is no clinical documentation of kidney stones per health care provider or radiographic evidence. The evidence is at least evenly balanced as to whether the Veteran’s kidney stones had their onset during service. The Veteran has stated that he has passed 15 kidney stones since service, including prior to April 2014 treatment at a VA facility, and his service treatment records reflect that the was treated for kidney stones in April 2007. The Veteran is competent to report his observable symptoms including passing kidney stones and blood in his urine, and there is no evidence of record which suggests the Veteran lacks credibility. See Jandreau v. Nicholson, 492 F. 3d 1377, n.4. Thus, the Veteran’s reports regarding his current symptomatology is afforded significant probative weight. While the April 2015 NP opined that the Veteran’s kidney stones were less likely than not (less than a 50 percent probability) incurred in or caused by a claimed in-service injury, event or illness, she based her opinion on the fact that there was no clinical documentation of kidney stones which is impermissible. See Buchanan, 451 F. 3d 1331. Therefore, the April 2015 NP’s opinion is inadequate and afforded no probative weight. The Veteran has provided lay evidence of continuity of kidney stones since its onset in service. The Veteran has stated that he first suffered from kidney stones during service, and his April 2007 service treatment records reflect treatment for kidney stones and pain in his kidneys. The Veteran has indicated that he has continued to suffer from kidney stones since service. The Veteran’s statements regarding kidney stones and pain since service are competent, and there is no indication that the Veteran’s statements lack credibility. See Buchanan, 451 F.3d at 1337. The provided medical opinion has been deemed inadequate and there is competent and credible lay evidence of kidney stones continuing since service. While the Board could remand for a new opinion, doing so could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. See 38 C.F.R. § 3.304(c). Moreover, to the extent that the grant of service connection in this case is based primarily on lay evidence, “nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself.” Buchanan, 451 F.3d 1331, 1335. Therefore, based on the competent and credible lay evidence provided by the Veteran of kidney stones since service, along with the medical evidence showing kidney stones, the evidence is at least evenly balanced as to whether the Veteran’s kidney stones had their onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for kidney stones is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Gastrointestinal disability Undated service treatment records reflect the Veteran complained of burning in the left interior of throat which began 24 hours earlier and gradually worsened. The Veteran’s June 2007 medical history report reflects that the Veteran reported frequent indigestion or heartburn. An April 2015 DBQ reflected that the Veteran has never been diagnosed with an esophageal condition. The Veteran reported an onset of problems in 2005 or 2006, and stated he experienced nausea. He stated that while he sought medical treatment, no specific medication was prescribed. The Veteran stated he has indigestion 3 to 4 times a week, but does not take any medications on a routine basis. The NP opined that the Veteran’s esophageal condition was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness, noting that the service treatment records do not note a complaint, diagnosis, or treatment of a reflux or gastroesophageal reflux disease (GERD). She also noted that the Veteran’s current medical records do not show chronicity of care for a reflux or GERD disorder. January 2017 VA treatment records reflect that the Veteran complained of pain across his abdomen when he eats. The evidence is at least evenly balanced as to whether service connection for a disability manifested by gastrointestinal signs or symptoms due to undiagnosed illness is warranted. The Veteran’s service treatment records reflect that the Veteran had gastrointestinal symptomatology which included frequent indigestion, heartburn, and burning in the left interior of the throat. The criterion of manifesting during service has therefore been met. Moreover, the Veteran has continued to have gastrointestinal symptomatology which has persisted since discharge from the service, thus his symptoms have existed for 6 months or more. The Veteran is competent to report readily observable gastrointestinal signs and symptoms. Jandreau, 492 F.3d at 1377, n. 4. The Veteran’s report is plausible and generally consistent with the additional evidence, and is also persuasive evidence supporting the claim. Caluza v. Brown, 7 Vet. App. 498, 510 (1995). There is no evidence of record which reflects that the Veteran’s gastrointestinal signs and symptoms are attributable to a known clinical diagnosis. For the foregoing reasons, the evidence for this claim is at least evenly balanced for each element for service connection. The Veteran served in the Southwest theater of operations during the Persian Gulf War, and has gastrointestinal signs or symptoms that manifested in service and have existed for more than 6 months post- service. Service connection for signs and symptoms of a gastrointestinal disability as a qualifying chronic disability under 38 C.F.R. § 3.317 (a) is therefore warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Ratings Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). PTSD The criteria for rating PTSD are found at 38 C.F.R. § 4.130, Diagnostic Code 9411. PTSD is rated under the General Rating Formula for Mental Disorders. Under this formula, a 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands, impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent evaluation is warranted where 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 inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in the VA’s general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held “that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration.” Id. at 117. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. The nomenclature employed in the rating formula is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-V). See 38 C.F.R. § 4.130. Per applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126 (a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment, not solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126 (b). A January 2016 DBQ indicates that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported being able to get jobs, but stated he gets fired due to absenteeism and anxiety on the job. He reported being an Apache Crew Chief in Iraq where he assisted in aircraft recovers, witnessing American injuries, but not death. He stated he was exposed to small arms fire. The Veteran stated he suffered from anxiety, anger, mood instability, hypervigilance, depression, nightmares, intrusive thoughts, and a history of suicidal ideation. In an April 2017 statement, the Veteran’s attorney reported that the Veteran’s PTSD symptomatology satisfies the criteria for at least a 70 percent schedular disability rating, noting that the Veteran has no friends whom he sees on a regular basis, does not trust anyone other than his wife, avoids leaving his home, and has a strained relationship with his wife and children. The attorney stated that the Veteran has an inability to control his anger and irritability, and experiences thoughts of suicide. An August 2019 DBQ indicated that the Veteran’s PTSD and overlapping psychiatric disability symptoms resulted in total occupational and social impairment. These symptoms included depressed mood, anxiety, suspiciousness, near-continuous panic, chronic sleep impairment, flattened affect, speech intermittently illogical, obscure, or irrelevant, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, obsessional rituals which interfere with routine activities, impaired impulse control, neglect of appearance and hygiene, and intermittent inability to perform activities of daily living. The Veteran reported that he cannot obtain and follow a substantially gainful occupation working even in a simple job limited to superficial interaction with co-workers and no public contact because he cannot tolerate the stress of being in the presence of co-workers and supervisors, and cannot maintain regular attendance at any job for 8 hours a day. The Veteran stated that he goes to the Veterans of Foreign Wars (VFW) for about an hour with other veterans helping in the kitchen and with donations, but can only go with his wife. He reported that he is always on edge when he is in a car, but is better when he is driving and in control. The psychologist reported that the Veteran’s panic disorder is so severe he cannot tolerate being out of his safe zone or away from his wife, for even a short period of time. In a September 2020 Declaration, the Veteran stated that he is currently homeless and that it is difficult paying expenses considering his inability to work. He stated that it is extremely difficult to leave his house or be in the presence of other people because he cannot stop thinking about the violence he experienced in Iraq and how at any moment he could have been attacked or killed. The Veteran reported that he thinks about suicide nearly every day, and that the thoughts are spurred by flashbacks he has from his deployment in Iraq. He stated he thinks about his experiences in Iraq every day and how those experiences affected his life. He reported that he cannot gain control of his anger, irritability, and feelings of detachment, and stated that he has hardly any communication with his 2 children as his PTSD symptoms shattered his first marriage, and ruined his relationship with his children. He reported having nightmares 4 or 5 times a week, flashbacks 3 to 4 times a week, and stated that he did not even feel safe inside his own home, and was always “on guard” and “ready for an attack”. The Veteran stated that he does not like to leave the house, and when he does, he has to have his wife with him or he will have a panic attack or lose his temper and hurt someone. The Veteran stated that he interacts with no one other than his wife on a regular basis, and has no relationship with his father or siblings as they cannot tolerate his anger, irritability, and isolationism. A November 2020 DBQ reflected that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement, thinking, and/or mood. The psychologist noted that the Veteran remained married to his wife of 6 years and described his relationship as “good”. The Veteran was estranged from his biological children, but had a “good” relationship with his 2 step-children. The Veteran reported being homeless for about a month, staying in a motel, and described his hobbies as playing Play Station and doing puzzles. The Veteran last worked in 2015, and reported that he was pretty depressed. The Veteran reported having suicidal thoughts, being distrustful of people, and finding it hard to go out in public. He stated that living near the airport set off a lot of flashbacks, and that he found it hard to sleep without medication. The DBQ indicated that the Veteran’s PTSD symptoms included depressed mood, anxiety, suspiciousness, near-continuous panic or depression, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and suicidal ideation. The evidence of record indicates that during the period on appeal, the Veteran’s PTSD symptoms have included anxiety, chronic sleep impairment, nightmares, hypervigilance, and suicidal ideation. The Veteran described being unable to leave his house without his wife by his side, and stated that he is distrustful of people, and is unable to control his anger and feelings of detachment, and reported having no relationship with his biological children, siblings or father due to his PTSD symptomatology. The Veteran reported losing jobs due to his inability to handle the stress of being in the presence of supervisors and co-workers, and the August 2019 psychologist reported that the Veteran is unable to be away from his wife for even a short period of time due to the severity of his panic disorder. The evidence is thus at least evenly balanced as to whether the Veteran’s PTSD symptomatology more closely approximates occupational and social impairment with deficiencies in most areas contemplated by a 70 percent rating under DC 9411. Accordingly, entitlement to an initial rating of 70 percent for PTSD is warranted. However, there is no evidence which suggests that the Veteran’s PTSD symptomatology and overall impairment more closely approximate total social impairment. The evidence of record indicates that the while the Veteran reported hypervigilance, isolationism, and anger management issues, he reported a good relationship with his step-children and his wife, and even described doing charitable work with the VFW. Moreover, the medical and lay evidence do not show gross impairment in thought process or communication, hallucinations or delusions, disorientation to time and place, persistent danger of hurting himself or others, memory loss of own name or occupation, or any other symptomatology resulting in total occupational and social impairment. While significant, the Veteran’s overall symptoms and impairment does not more nearly approximate total social impairment as contemplated by a 100 percent rating. As the preponderance of the evidence is against a 100 percent rating, the benefit of the doubt doctrine is not for application in this regard. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s symptoms of PTSD more closely approximate occupational and social impairment with deficiencies in most areas. Accordingly, entitlement to a rating of 70 percent, but no higher, for PTSD is warranted for the entire period on appeal. Earlier Effective Date The Veteran indicated in his June 2016 notice of disagreement that he should be awarded an earlier effective date than October 30, 2014 for his service-connected PTSD. The Veteran has not, however, provided any explanation as to the reasons for his belief that an earlier effective date is warranted. Generally, the effective date for a grant of service connection on an original claim is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2)(i). Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57,660 (Sept. 25, 2014) (eff. Mar. 24, 2015). This amendment applies to claims or appeals filed on or after March 24, 2015. Id. at 57,686. In this case, the Veteran’s intent to file a claim for service connection for a psychiatric disorder was filed prior to the effective date of the amendment. As the claim in this case was filed prior to that date, the amendments are not applicable and the law and regulations in effect prior to March 24, 2015, will be applied in this case. Under the prior, applicable regulations, any communication or action, indicating intent to apply for one or more benefits under laws administered by VA, from a claimant or her 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 claimant, 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). For the following reasons, the Board concludes that assignment of an earlier effective date for service connection for PTSD is not warranted. The Veteran submitted his Application for Disability Compensation and Related Compensation Benefits form on October 30, 2014 for, inter alia, PTSD using the VA 21-526EZ standard form as prescribed by the Secretary. After initially being denied service connection for PTSD in a June 2015 rating decision, the Veteran was subsequently awarded service connection for PTSD in a February 2016 rating decision, effective October 30, 2014. While the Veteran has indicated that he should receive an earlier effective date than October 30, 2014, he has not maintained, nor does the evidence suggest, that a formal or informal claim for service connection for a psychiatric disorder was submitted prior to October 30, 2014. Additionally, there is no document dated prior to October 30, 2014 that identified a sickness, disease, or injury relating to PTSD or any psychiatric disability for which compensation was sought, even at a high level of generality, which is the test for evaluating the sufficiency of both formal and informal claims. Sellers v. Wilkie, 965 F.3d 1328, 1338 (Fed. Cir. 2020). See also Shea v. Wilkie, 926 F.3d 1362, 1370 (Fed. Cir. 2019) (“language that points to records mentioning... a condition in a way that, sympathetically read, is properly understood as seeking benefits for such a condition” can satisfy the “identify the benefit sought” requirement of 38 C.F.R. § 3.155 (a)). Therefore, considering the above-cited legal authority, the Board finds that an effective date earlier than October 30, 2014 for the Veteran’s claim for service connection for PTSD is not warranted. Based on the foregoing, the Board finds that the October 30, 2014 date is the proper effective date for the award of service connection for PTSD, thus the Veteran’s appeal for an earlier effective date must be denied. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(2). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. TDIU A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16 (a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” as having 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 following: 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. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose, 4 Vet. App. at 363. “A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment.” Id. The ultimate question, however, is “whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.” Id. In light of the decision herein, the Veteran’s PTSD is rated as 70 percent disabling, and he has no other service-connected disabilities. Therefore, as the Veteran has one disability rated at least 60 percent disabling, he is eligible for consideration for a TDIU on a schedular basis. See 38 C.F.R. § 4.16 (a). Nonetheless, to grant TDIU it must be found that the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disability. The Veteran’s 8940 Application for Increased Compensation Based on Unemployability indicated that the Veteran’s PTSD prevented him from securing or following any substantially gainful occupation. The Veteran noted that he became too disabled to work in October 2007, that his disability affected full-time employment in January 2009, and that he last worked full-time in March 2015. The Veteran had 4 years of high school education, and reported that he is homeless form time to time and suffers financially due to the severity of his PTSD. April 2017 treatment records furnished by the Social Security Administration reflected that the Veteran suffered from understanding and memory limitation, sustained concentration and persistence limitation, and social interaction limitations. The Veteran reported that he stopped working in October 2015 and explained that it is hard for him to hold a job due to his PTSD. In the August 2019 DBQ, the Veteran’s psychologist noted that the Veteran last worked for a month at the Alcove Eatery, but was fired because he could not get along with his boss. He reported missing a lot of time from work at other jobs due to his panic attacks. The psychologist reported that the Veteran absolutely cannot adapt to stressful circumstances in work settings or changes in his home environment, and has impaired impulse control to the point where every little thing irritates him and he lashes out, including at his boss or customers, which has been a factor in his losing jobs. The psychologist opined that the Veteran is totally incapable of obtaining and maintaining a substantially gainful occupation even in a simple job limited to superficial interaction with co-workers and no public contact due to his PTSD symptomatology. Based on the foregoing, the Board finds that the Veteran’s service-connected PTSD precludes him from securing and following substantially gainful employment for which the Veteran would otherwise be qualified. The Veteran’s work history has involved working most recently in lawn care and as a cook, but his PTSD precludes him from dealing with the stresses of work due to his noted anger issues, hypervigilance, and inability to associate with others without his wife accompanying him. Additionally, the Veteran’s panic attacks prevent him from being a dependable worker as they cause him to miss a considerable amount of time from work. The August 2019 psychologist opined that the Veteran is unable to work due to his service-connected disability symptomatology alone, and the evidence reflects that the Veteran’s service-connected disability significantly limits his ability to perform even basic work activities. The preponderance of the evidence thus reflects that the Veteran’s service-connected disability renders him unable to secure or follow substantially gainful employment. Accordingly, entitlement to a TDIU is warranted. It appears that the Veteran stopped working due to his service connected disabilities in March 2015. However, the Board will not specify the effective date of the TDIU to allow the RO to do so in the first instance. See Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating.”) REASONS FOR REMAND Bilateral Hearing Loss and Tinnitus The Veteran’s service treatment records do not note any complaints of, or treatment for bilateral hearing loss or tinnitus, and his August 2007 medical examination report upon discharge is normal regarding his ears. The Veteran’s VA treatment records do not note treatment for, or complaints of bilateral hearing loss or tinnitus. The evidence of record reflects that the Veteran was scheduled for a VA examination to determine the nature and etiology of any bilateral hearing loss and tinnitus in April 2015, but failed to report the examination. Under 38 C.F.R. § 3.655 (a), when entitlement to a benefit cannot be established without a VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655 (b) or (c) as appropriate. The provisions of 38 C.F.R. § 3.655 (b) provide that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. See Turk v. Peake, 21 Vet. App. 565, 569 (2008) (“Where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim”). When a claimant misses a scheduled VA examination, the Board must consider (1) whether the examination is necessary to establish the entitlement to the benefit sought, and (2) whether the claimant had good cause to miss the scheduled examination. Id. In a November 2015 letter, the Veteran’s then representative stated that the Veteran failed to report to his VA examination due to his homelessness as he was unable to transport himself to the appointment, or call to reschedule the appointment. Here, the Board notes that the Veteran provided good cause for failing to report for a scheduled VA examination, thus, the Board will remand for a new VA examination to determine the nature and etiology of any bilateral hearing loss and tinnitus. Right Shoulder February 2006 service treatment records reflect an irregularity at the proximal right clavicle at the level of the sternoclavicular joint suggesting previous injury. The Veteran was treated after a tool was dropped on his right shoulder. March 2006 service treatment records indicate the Veteran reported having dislocated his right shoulder 2 years prior playing football, and reflect that he was treated for injuring his shoulder unloading military-owned demountable containers. The Veteran’s August 2007 medical examination report upon separation is normal with no indication that the Veteran suffered from a right shoulder disability or related symptomatology. In an April 2015 DBQ, the examining NP diagnosed right shoulder acromioclavicular joint osteoarthritis. The Veteran reported that he sustained a right shoulder injury in 2006, and was evaluated and placed in a sling for a short period of time. The Veteran stated that he believes his shoulder was dislocated. He reported limited range of motion, and pain with strenuous activity. No pain was noted upon examination. The NP opined that the Veteran’s right shoulder disability was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. She noted that there was no documentation of a right shoulder injury during service, and found that the April 2015 x-ray is consistent with the natural aging process and not due to service. The NP also noted mixed discrepancies in accuracy, gravity, and actual facts noted between the Veteran’s narrative and the actual documented facts. January 2017 VA treatment records reflect that the Veteran complained of right shoulder pain. The Veteran has a current diagnosis of right shoulder acromioclavicular joint arthritis, and his service treatment records reflect treatment for a right shoulder injury. The dispositive issue is whether there is a relationship between the in-service injury and his current right shoulder disability. While the April 2015 NP opined that the Veteran’s right shoulder disability was less likely than not (less than a 50 percent probability) incurred in or caused by a claimed in-service injury, event, or illness, the NP based her opinion primarily on the fact that the Veteran’s service treatment records do not reflect a right shoulder injury during service, failing to consider the Veteran’s reports of a right shoulder injury in 2006 during service, and the February 2006 service treatment records reflecting an irregularity at the proximal right clavicle. As the April 2015 NP primarily based her opinion on an inaccurate factual premise, her opinion is inadequate and afforded no probative weight. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely”) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)). Unfortunately, the Board finds that a remand is necessary for a new opinion to determine the nature and etiology of the Veteran’s right shoulder disability. The Veteran has provided competent and credible evidence of an in-service right shoulder injury, and his reports are afforded significant probative weight. As the April 2015 NP failed to consider the competent evidence of an in-service injury, her opinion, as previously noted, is inadequate, and remand for a new medical opinion is warranted. Sleep disturbance The Veteran’s service treatment records do not reflect any treatment for, or complaints of sleep disturbances, and his August 2007 medical examination report is normal with no indication that the Veteran suffers from any sleep issues. In an April 2015 DBQ, the Veteran reported that he was seeking service connection due to continued problems with nightmares and not for sleep apnea. The NP noted that the Veteran did not have any signs or symptoms attributable to sleep apnea. A sleep study was performed and determined that the Veteran did not have a documented sleep breathing disorder. The NP opined that the Veteran sleep disturbance was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness, stating that the Veteran did not have a claim for sleep apnea and there are no objective findings of obstructive sleep apnea. The Board finds that a remand for another VA examination is warranted to determine the nature and etiology of any sleep disturbance. While the April 2015 NP opined that the Veteran’s sleep disturbance was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, she based her conclusion on the fact that the Veteran did not have a claim for sleep apnea and because there were no objective findings of obstructive sleep apnea. However, the NP failed to consider the Veteran’s contentions that his sleep disturbances were due to nightmares and not sleep apnea, and ultimately did not provide an opinion regarding the Veteran’s sleep disturbances. Therefore, the April 2015 opinion is inadequate and a remand for a new examination and opinion is warranted. The matters are thus REMANDED for the following actions: 1. Schedule the Veteran for a VA examination by an audiologist to determine the nature and etiology of any bilateral hearing loss and tinnitus. The audiologist must opine whether the Veteran’s bilateral hearing loss and tinnitus are at least as likely as not (at least a 50 percent probability) related to an in-service injury, event, or disease, including the Veteran’s reports of exposure to acoustic noise during service. A complete rationale for any opinion provided is requested. The audiologist is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered when formulating any opinions. 2. Obtain a medical opinion to determine the nature and etiology of the Veteran’s right shoulder disability. If an opinion cannot be provided without an examination, schedule the Veteran for an examination to determine the nature and etiology of the Veteran’s right shoulder disability. The examiner must opine whether the Veteran’s right shoulder disability is at least as likely as not (at least a 50 percent probability) related to an in-service injury or disease, to include the Veteran’s account of an injury playing football, unloading containers, and dropping a tool on his shoulder. A complete rationale for any opinion provided is requested. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. 3. Schedule the Veteran for a VA examination by an appropriate physician to determine the nature and etiology of the Veteran’s sleep disturbances. The physician must opine whether the Veteran’s sleep disturbances are at least as likely as not (at least a 50 percent probability) related to an in-service injury, event, or disease. (Continued on the next page)   A complete rationale for any opinion provided is requested. The physician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.