Citation Nr: 21069515 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 20-05 385 DATE: November 18, 2021 ORDER Entitlement to service connection for a back disability is granted. Entitlement to an earlier effective date for the grant of a 70 percent rating for posttraumatic stress disorder (PTSD) prior to December 8, 2016 is denied. Entitlement to an earlier effective date for the grant of a 30 percent rating for bilateral hearing loss prior to December 8, 2016 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 8, 2016 is denied. Entitlement to Dependents' Education Assistance (DEA) benefits prior to December 8, 2016 is denied. REMANDED Entitlement to a rating in excess of 30 percent for heart disability is remanded. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, the Veteran's back disability was incurred in or due to his time in service. 2. The Veteran did not file a claim, formal or informal, prior to December 8, 2016 and there is no other non-final decision that would provide an earlier effective date for the increased rating of his PTSD. 3. The Veteran did not file a claim, formal or informal, prior to December 8, 2016 and there is no other non-final decision that would provide an earlier effective date for the increased rating of his bilateral hearing loss. 4. The Veteran did not file a claim, formal or informal, prior to December 8, 2016 and there is no other non-final decision that would provide an earlier effective date for the award of a TDIU. 5. The Veteran did not file a claim, formal or informal, prior to December 8, 2016 and there is no other non-final decision that would provide an earlier effective date for the award of DEA benefits. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for an effective date prior to December 8, 2016 for the award of an increased rating for PTSD have not been met. 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.155, 3.400. 3. The criteria for an effective date prior to December 8, 2016 for the award of an increased rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.155, 3.400. 4. The criteria for an effective date prior to December 8, 2016 for the award of a TDIU have not been met. 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.155, 3.400. 5. The criteria for an effective date prior to December 8, 2016 for the award of DEA benefits have not been met. 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1966 to June 1969. The Veteran's appeal of his claim to service connection for a back disability is on appeal from a March 2014 rating decision by a Department of Veterans Affairs (VA) regional office (RO). In an August 2017 decision, the Board denied the Veteran's claim and the Veteran appealed to the United States Court of Appeals for Veterans' Claims (the Court). The Court, in a Joint Motion for Remand (JMR) vacated and remanded the matter back to the Board for further adjudication. In the JMR, the parties agreed that the Board's rationale for assigning little probative value to Dr. W.H.'s October 1979 letter frustrated judicial review. The Veteran has had several hearings before Veterans Law Judges (VLJs). In April 2017, the Veteran testified before Judge Pappas and following the JMR, the Veteran also had a hearing before Judge Auer. Here, the Veteran agreed to a two-judge decision and declined a third hearing. Transcripts of both of these hearings have been associated with the Veteran's file. Subsequently, in July 2020, the matter was remanded again for an adequate examination after determining there were flaws with the November 2019 examination based on the most recent caseflow, specifically that the examiner may not have fully considered the Veteran's lay statements concerning continuity of symptomatology and the examiner did not cite to any medical literature in support of his opinion. Another examination was ordered upon remand. After this remand, the Veteran requested a hearing before a third VLJ. This hearing was conducted in July 2021, adding Judge Crowley to the panel. The remaining issues on appeal stem from a March 2017 rating decision by a VA RO. These matters were also discussed during the May 2019 and July 2021 hearings. Transcripts have been associated with the file. Service Connection Claim Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310. The Veteran contends he has a back disability that was incurred in or due to his time in service. The Veteran has had a few hearings on this matter. In his hearings, the Veteran said in December 1967, he hurt his back changing a tire on a five ton lowboy but that he didn't go to the doctor. The Veteran said he didn't go to the doctor because he thought he could just overcome it. He stated he had a good sergeant who gave him light duty. The Veteran also reported that he then injured his back again while in Vietnam moving a 500 pound bomb. The Veteran was given 24 hour bedrest and believed this incident was recorded in his STRs. The Veteran said when he got out of service, he still had back problems and then in 1977 at work, he hurt his back at work lifting boxes. The Veteran said this re-injured his back. The Veteran said that he lied about not having a pre-existing back disability because his company would fire him. After he took time off for his back surgery, they ended up firing him anyway. The Veteran has been diagnosed with a back disability. While in service, the Veteran worked on a barge running a crane. After service, the Veteran worked as a crane operator for three months, at a grocery store, and at a shipyard. (See e.g. May 2010 treatment record, July 2021 hearing transcript.) The Veteran's service treatment records (STRs) show the Veteran's entrance and separation examinations show the Veteran wore a back brace. The Veteran's STRs also show he was seen in July 1968 for a "catch in back" associated with dizziness and loose stool. However, there were no follow up visits reported. The Board notes on several occasions, the Veteran has explained that he did indeed use a back brace. However, he has also reported this was for a hernia that he had, not for a back problem. Additionally, the Veteran did not check that he had back trouble on his enlistment examination and a November 2019 examiner opined it was less likely than not the Veteran's back condition existed prior to his time in service. (See e.g. Enlistment examination, November 2019 examination, July 2021 hearing transcript.) The Veteran himself has not claimed that he had a preexisting back condition prior to his entrance into service and therefore, the Board finds a discussion of in-service aggravation is not warranted. The Veteran has said that his separation examination was rushed, suggesting this was why he did not note that he had ongoing back pain. However, on his separation examination, the Veteran checked "yes" to having several other ongoing problems, including painful joints, pain or pressure in his chest, eye trouble, and dizziness, but checked "no" for whether he had back trouble of any kind. It does not seem reasonable the Veteran would check yes to certain conditions and not also check yes for his back trouble, even if he were rushed. In February 2013, W.A., who served with the Veteran, submitted a statement. W.A. stated he recalled an instance of the Veteran injuring his back when hooking chains onto a pallet of 500 pound bombs. W.A. witnessed the Veteran drop to his knees and grab his back. W.A. was also with the Veteran when he injured his back for a second time while in service. In October 2013, the Veteran submitted a statement. The Veteran said W.A.'s statements and his 54th Med. Disp. records would show he injured his back while in service. The Veteran has also said he tried to obtain his in-service records from the dispensary in Vietnam, but had no luck as all older records were destroyed. (See e.g. October 2007 correspondence.) The Veteran has had multiple examinations and opinions, both through VA and private examiners, pertaining to his back. The Veteran had an examination for his back in March 2014. The examiner diagnosed with the Veteran with a back disability. The examiner reviewed the Veteran's file and saw him in person. The examiner also recounted how the Veteran said his back condition began. The Veteran reported his injury began in August 1978 with several other back treatments since that time. The examiner reviewed the records from the 1977 and 1978. The examiner opined it was less likely than not the Veteran's back disability was incurred in or due to his time in service. The examiner noted the Veteran acutely hurt his back in 1977 after heavy lifting. The examiner also reported that the Veteran's degenerative disc disease and degenerative joint disease were consistent with natural aging. However, this examiner did not discuss the Veteran's reports of in-service back problems or that his STRs show he was seen at least once in service for a back problem. In November 2015, the Veteran submitted a private opinion. While the Veteran's representative said the examiner reviewed all available records, including service records, the examiner stated he reviewed the "very extensive chart" that was sent to him. The examiner reviewed the February 2014 examination and notes saying the Veteran's symptoms began in 1977 and have waxed and waned since that time. The examiner specifically asked the Veteran whether he had symptoms prior to 1977. The Veteran reported to this examination that he was working to support his family and he was afraid if he told his employer he had a pre-existing back problem, he would be let go. The Veteran reported he lied in order to save his job. The examiner also reviewed the statement from W.A. and treatment records. The examiner concluded that he believed "the cart supports the history of an injury in Germany and an injury in Vietnam that involved his low back. This did contribute to further problems that he had with his back." In February 2017, an examiner opined the Veteran's back condition was less likely than not due to his time in service based on a review of the Veteran's file, including the November 2015 examination letter and the 2013 statement from W.A. This examiner noted the Veteran's in-service back pain and his diagnosis of viremia and that there were no further notations of back problems. The examiner also reviewed the Veteran's private treatment records. The examiner also cited to some medical literature. The examiner concluded the Veteran's STRs did not demonstrate the Veteran developed a back condition that was persistent while on active duty as seen in his treatment notes or his separation history form. The examiner concluded the Veteran experienced self-limiting conditions which resolved. "Consequently, it would not be likely that complications from the military service events would be expected to resurface later on in life." The examiner also addressed W.A.'s statement and noted the Veteran did not actually lift the 500 pound bomb and hence, the "type of back trauma that the Veteran sustained was a form of minor trauma. As noted in the medical literature, such an event would not have predisposed the back to the development of the degenerative changes." Pertaining to the November 2015 opinion, the medical literature does not support a finding that minor trauma would cause the Veteran's current problems. Additionally, the Veteran did not have a history of back problems prior to his 1977 incident and that the Veteran then had a history of repetitive traumatic events. The examiner noted that "while a buddy statement and a physician [have] presented other information suggesting a causal relationship with military service, the preponderance of the evidence from the military records does not demonstrate that the Veteran would have developed any significant complications or residuals arising from his military service based on the type of injuries he sustained, his actual clinical course, and by the medical literature. Rather it was the later events in 1977 to 1978 that had the greatest influence in the origin of the Veteran's lumbar spine conditions." In May 2017, the Veteran submitted another private opinion. This examiner reviewed the Veteran's treatment records and the Veteran's discharge documents. This examiner opined it was more likely than not there is a causal nexus to the Veteran's current back condition and in the injuries he sustained while in service. The examiner noted the statement by W.A. The examiner said these injuries more than likely lead to injuries of the lumbar spinal segments and led to subsequent intervertebral disc herniations and that the Veteran has had chronic pain continued through the present. However, this examiner did not account for the fact there was no documentation of a back problem upon separation, the gap in treatment records, and did not discuss the effect of the Veteran's subsequent civilian work injuries on his current back condition and why those were not the cause of his current back disability. The Veteran had another examination for his back in November 2019 in which the Veteran said the onset of his back pain began while in service, that he was given pain medication, and 24 hour bed rest. The Veteran reported he continued to receive care for his back. The examiner opined the Veteran's back condition was less likely than not incurred in or due to his time in service, saying there was no medical records noting any back conditions while in service. Based on a records review, the examiner noted the Veteran's back pain started in 1973 and in 1977 while lifting at work. As discussed above, this also provided an opinion on the question of whether the Veteran's back disability pre-existed his time in service and if so, whether it was aggravated beyond its natural progression by his time in service. Thus, while the opinion itself is not applicable here, the Board mentions this examination for completeness and to note the Veteran's contentions therein about the onset of his back disability and the direct service connection opinion. The Veteran had another examination for his back in July 2020. On his April 1966 entrance examination, the Veteran reported a history of using a back brace. However, the entrance examination itself does not report a back disability. The July 2020 examiner noted that on both the Veteran's entrance and separation examinations, it was noted he used a back brace but both were also negative for back trouble of any kind. The examiner noted the Veteran's brace may have been used for his inguinal hernia that was repaired prior to service. The examiner opined that based on the evidence, it was less likely than not the Veteran had a pre-existing back condition. The examiner opined it was less likely than not the Veteran's back condition was caused by, related to, or worsened beyond its natural progression by his time in service. The examiner reviewed the Veteran's STRs and noted a complaint associated with a diagnosis of viremia, but that his back pain was associated with a viral infection. Also in support of his opinion, the examiner pointed to the normal separation examination and that there was no record of in-service injury or treatment for back problems. The examiner specifically noted the Veteran's buddy statement from W.A. who witnessed the Veteran having trouble lifting heavy loads. However, the examiner stated that this statement was not competent to "derive a diagnosis or conclude the function or origin of any medical care the Veteran received." The examiner stated that at best, "we may determine that the Veteran experienced pain which was acutely present while engaged in difficult manual labor." The examiner also addressed records from Dr. N. when the Veteran reported back pain. However, no diagnosis or history was associated with the record and that by this point, the Veteran had been separated from service and had been presumed to be actively engaged in the civilian work force. The examiner also addressed the Veteran's reports of ongoing symptomatology. The examiner noted the Veteran was actively engaged in heavy lifting in a civilian job, with the first documented complaint of any back issue four years post separation and the first documented injury later than that. The examiner acknowledged the Veteran may have indeed acutely injured his back in service, the objective evidence, including the four year gap between separation and report of back pain and the documented civilian injury post-service, did not support a finding that the Veteran's current condition began in service. In support of his opinion, the examiner pointed out several relevant treatment records, STRs, the Veteran's statements, buddy statements, and previous examinations. A previous Board decision found the February 2014 and February 2017 VA examinations and opinions of significant probative value. However, these opinions were based, in part, on the fact the Veteran did not report back problems until a 1977 injury and the February 2017 examiner noted the Veteran's record did not "demonstrate a history of back problems before 1977." The Veteran's medical treatment records show he complained of back pain as early as September 1973, after separating from service in June 1969. In his April 2017 hearing, the Veteran stated this list of treatment dates was received from the doctor contemporaneous to his initial 1979 claim with VA. A previous Board decision found that this letter had little probative value. Here, the Board does not find the mere fact that this treatment date list was created in October 1979, contemporaneously to his initial 1979 VA claim, to render the treatment records of no probative value. However, what the Board does find probative is that while this October 1979 lists treatment dates as early as 1973, 1974, 1975, and 1977, the accompanying medical treatment records do not show treatment for those dates. Indeed, most of the accompanying records are from 1978 when the Veteran was seen by the doctor after reporting several back injuries at work throughout 1977. Also of probative values is that in these treatment records, the Veteran did not report that he was already having pain from a pre-existing back injury. Instead, it was reported that the "onset of symptoms was in January 1977 when he had sudden acute low back pain while lifting on the job." The Board understands that the Veteran has said he did not report pre-existing back trouble to his job because he was afraid he would not get hired. However, the Board does not necessarily find it reasonable the Veteran would not tell his treating physician that he was already experiencing back pain or that he was still suffering from a previous back injury. The Veteran's record shows he was seen intermittently throughout the 1970s for his back until he was admitted to the hospital in February 1978. The Veteran's treatment records show that he has continued to have difficulty with his back and an April 2007 treatment record shows the Veteran said his back had hurt since the early 1970s and that he hurt it picking stuff up in Vietnam. An October 2007 treatment record reported the Veteran had a June 2007 motor vehicle accidence and that the Veteran went to a chiropractor for back treatment. The Veteran's treatment records up to present show the Veteran continues to struggle with his back disability. The Board has thoroughly reviewed all of the evidence of record, including the multiple examinations, some of which find a nexus between the Veteran's current back problem and some that do not. Additionally, the Board has reviewed the Veteran's STRs that do not tend to show the Veteran had an ongoing back problem that continued to separation. The Board has also reviewed the Veteran's post-service treatment records which do not appear to indicate ongoing back problems continuously since service, but do show a mention of back treatment coming four to seven years post-service. The Board has also considered the lay evidence of record, including the statement from W.A., saying the Veteran injured his back in service, and the Veteran's consistent statements about why he did not report a back injury or seek treatment prior to 1973. The Board has also noted the Veteran's testimony that he hurt his back in service and how it occurred to be relatively consistent. While there are small inconsistencies, the Board understands these events happened over 50 years ago and does not expect the Veteran's recollection to be perfect. The Board finds the Veteran competent and credible to testify as to what happened to him while in service and that he experienced pain since his time in service. The Board has weighed the Veteran's statements and that of W.A. along with the two examinations saying the Veteran's back condition began and was a result of his time and service against the other evidence that suggests the Veteran's back is the result of a work injury and events subsequent to his time in service. The Board finds persuasive the Veteran's continued, consistent testimony about how he injured his back and why he didn't report a back injury immediately after service at his new job. The Board must weigh all this evidence and finds the evidence is in equipoise as to whether the Veteran's current back disability was incurred in or due to his time in service. Therefore, the Board will grant the benefit of the doubt to the Veteran and will grant the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). Effective Date Claims Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). As to the claims for earlier effective date when the claim was filed after March 24, 2015, the term "claim" means a formal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). A formal claim was one that had been filed on the form prescribed by VA. Id. The effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(ii), (r). The provisions of 38 C.F.R. § 3.400 (b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within one year after separation from service. With regard to the date of entitlement, the term "date entitlement arose" is not defined in the current statute or regulation. However, it is the date when the veteran met the requirements for the benefits sought, which is determined on a "facts found" basis. 38 U.S.C. § 5110 (a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). An effective date generally can be no earlier than the "facts found." DeLisio v. Shinseki, 25 Vet. App. 45 (2011). These "facts found" include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. For instance, if a veteran filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). An effective date for an increased rating may be assigned later than the date of receipt of the claim, if the evidence shows that the increase in disability actually occurred after the claim was filed, but never earlier than the date of receipt of the claim for increase. In general, "date of receipt" means the date on which a claim, information or evidence was received in VA. 38 C.F.R. § 3.1 (r). A claim is "a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit." 38 C.F.R. § 3.1 (p). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA 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. 38 C.F.R. § 3.155 (a). If a Veteran file's a claim for benefits with VA and the claim is disallowed, he has the right to appeal that disallowance to the Board. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. If the Veteran does not perfect an appeal, however, the disallowance becomes final. See 38 U.S.C. § 7105. Similarly, denials of claims by the Board are final on the date the decision is issued by the Board. 38 U.S.C. § 7104. The finality of that rating decision can only be upset upon a finding of clear and unmistakable error (CUE). See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.105. The effective date of an award based on a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Court in Turner v. Shulkin, 29 Vet. App. 207 (2018), also held that for purposes of finality VA treatment records dated during the appeal period are consider in VA's possession even if these records are not physically associated with the claims file until many years after the RO issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period. The Court also held that these VA treatment records will thereafter only trigger VA's duty under 38 C.F.R. § 3.156(b) if they are new and material evidence. Thereafter, in Lang v. Wilkie, No. 2019-1992 (August 19, 2020), the Court removed the sufficient knowledge of the existence of the VA records requirement in Turner. For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within one year from such date otherwise, date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). PTSD and Bilateral Hearing Loss Claims The Veteran was granted service connection for bilateral hearing loss rated as noncompensable in a July 2008 rating decision. The Veteran did not perfect an appeal. The Veteran was granted service connection for PTSD rated as 30 percent disabling in a February 2007 rating decision effective November 7, 2005. In March 2008, the Veteran's rating was increased to 50 percent, still effective November 7, 2005. The Veteran did not perfect an appeal. The Veteran filed a claim for Increased Compensation Based on Unemployability that was received by VA on December 8, 2016. In March 2017, an RO granted an increased rating for the Veteran's PTSD from 50 to 70 percent and an increased rating for the Veteran's bilateral hearing loss from noncompensable to 30 percent, effective December 8, 2016, the date the claim was received. The Board has carefully reviewed whether there was a formal claim or any correspondence or document that could be construed as an informal claim that was filed prior to December 8, 2016. However, the Board did not find any such claim in the Veteran's file. In his July 2021 hearing, the Veteran testified that his symptoms of his PTSD and hearing loss that were the basis for the grant of his increased ratings had been present prior to December 8, 2016. The Board has considered this testimony and is sympathetic to how the Veteran's mental health impacts not only his life, but also the life of his spouse. However, in accordance with regulations discussed above, the effective date of an increased rating is the date of receipt of the claim, or the date entitlement arose, whichever is later. Thus, even if the Board accepts as true the fact the Veteran's symptoms worsened prior to December 8, 2016, the date VA received the claim, per regulations, the earliest effective date available to the Veteran is the date his claim was received because this date is the later than the date entitlement arose. The Board wants to make clear to the Veteran that this does not mean it does not believe him when he says his symptoms worsened prior to December 8, 2016. Otherwise, the Veteran would not have filed for increased ratings. However, the Board is unable to offer an earlier effective date for the grants of increased rating for the Veteran's PTSD and hearing loss disability. TDIU and DEA Benefits Claims The Veteran filed a claim for Increased Compensation Based on Unemployability that was received by VA on December 8, 2016. In March 2017, an RO granted a TDIU and DEA benefits, both of which were granted an effective date of December 8, 2016, the date the claim was received. The Veteran contends his is entitled to an earlier effective date for both of these benefits. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361. The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). The Veteran met the schedular criteria as of March 29, 2010 with a combined disability rating of 80 percent. At that time, his PTSD was rated as 50 percent disabling, his sleep apnea was also rated as 50 percent disabling, his heart disability was rated as 30 percent disabling, his tinnitus was rated as 10 percent disabling, and his bilateral hearing loss was rated as noncompensable. The Veteran contends he is entitled to an earlier effective date because he met the schedular requirements prior to the receipt of his December 8, 2016 claim. Additionally, the Veteran points to Rice v. Shinseki, 22 Vet. App. 447, 448-449 (2009), saying that a claim to a TDIU is part of a claim to an increased rating and this benefit should have previously been considered. (See July 2021 hearing transcript and October 2021 Representative Brief.) The Board agrees that the Veteran met the schedular requirements for a TDIU prior to the December 8, 2016 date. However, this does not mean the Veteran is automatically entitled to a TDIU as of the date he met the schedular requirements. The Board has also considered the Vocational Expert Opinion submitted by the Veteran saying he was unemployable prior to December 8, 2016. (See May 2019 Employability Evaluation.) The Board notes that there was no pending or non-final increased rating claim or claim specifically for TDIU or DEA benefits prior to the receipt of the December 8, 2016 claim that is part of this appeal or that has not been addressed in another appeal stream. As discussed above, the effective date is the date of the claim is received or the date entitlement arose, whichever is later. In this case, the non-final claim on appeal stems from the December 8, 2016 claim. The Board does not find any other communication that could be construed as an informal claim for this benefit or a formal claim for this benefit or a non-final rating action prior to this date. Thus, even if the Board were to find the Veteran was entitled to a TDIU prior to this date, the earliest available effective date is December 8, 2016. As for his DEA benefits, the Board also finds there is no available earlier effective date as the award of DEA benefits. Basic eligibility for certification of Dependents' Educational Assistance exists if the veteran was discharged from service under conditions other than dishonorable, or died in service, and either (1) has a permanent total service-connected disability, or (2) a permanent total service-connected disability was in existence at the date of the veteran's death, or (3) died as a result of a service-connected disability, or, if a service member (4) is on active duty as a member of the Armed Forces and, for a period of more than 90 days, has been listed by VA concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in the line of duty by a foreign government or power. 38 C.F.R. § 3.807. Conditions number two through 4 are not applicable to the Veteran. And since the Veteran does not qualify for condition one until December 8, 2016, there is no earlier effective date for the award of DEA benefits. Turning to the Veteran's contention that he should receive an earlier effective date based on Rice, supra, the Board notes that it does not have jurisdiction over other final rating decisions in this appeal. In his March 2019 hearing, the Veteran appeared to suggest his earlier effective date should be back to September 2007 when he stopped working. The Veteran was granted in increased rating for his PTSD in at March 2008 rating decision. This decision did not address whether the Veteran was also entitled to a TDIU. However, the Veteran did not perfect an appeal and this decision became final. Should the Veteran disagree with a now final rating decision that did not account for the principles laid out in Rice, supra, he is free to file a CUE claim as noted above. However, the Board does not have jurisdiction under a claim to an earlier effective date to determine whether there was error in that previous March 2008 decision for not considering the Veteran's entitlement to a TDIU. Regarding the claims above, the Board acknowledges the Veteran's statements that his conditions continue to affect his daily life and that he believes he is entitled to his increased ratings from an earlier date. However, while the Veteran is competent to testify as to the symptoms of his disabilities, he is not competent to determine when the effective date of his award should be as this is determined by factors beyond the observable symptoms of the Veteran. It is important for the Veteran to understand that the most probative evidence of record provides evidence against these claims that the Board cannot, unfortunately, ignore. It is equally important for the Veteran to understand this does not mean the Board thinks his disabilities are not severe or that the Board does not believe the Veteran when he testifies as to what he is experiencing due to his service-connected disabilities. Simply, it means that legally, there is no basis to provide earlier effective dates for these claims. Regarding the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). REASONS FOR REMAND The Veteran contends his heart disability is worse than indicated by his 30 percent rating. The Veteran's heart disability is currently rated as 30 percent disabling under DC 7005. Under DC 7005, the criteria under which the Veteran's heart disability is rated, a 30 percent rating contemplates a workload of greater than 5 METs, but not greater than 7 METs, which results in dyspnea, fatigue, angina, dizziness or syncope, or evidence of cardiac hypertrophy or dilatation on EKG, ECG, or X-ray examination. A 60 percent rating contemplates more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs, but not greater than 5 METs, which results in dyspnea, fatigue, angina, dizziness or syncope, or; left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent. Finally, a 100 percent rating contemplates documented coronary artery disease resulting in chronic congestive heart failure, or; workload of 3 METs or less, resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, DC 7005. The Veteran's last examination for his heart condition was in 2017, almost five years ago. In his July 2021 hearing, the Veteran reported that his condition had worsened. The Board finds a remand for a contemporaneous examination is warranted. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination to determine the severity of his heart disability, to include his coronary artery disease. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran's disability and discuss the effect on any occupational functioning and activities of daily living. The examiner should account for the Veteran's statements about his symptoms. 2. After undertaking any other appropriate development deemed necessary, readjudicate the issues on appeal based on the additional evidence of record. If the determinations remain adverse to the Veteran, he and his representative must be provided with a supplemental statement of the case. An appropriate period of time must then be allowed for a response before the record is returned to the Board for further review. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.