Citation Nr: 21077354 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-49 421 DATE: December 29, 2021 ORDER Entitlement to an increased rating for allergic rhinitis is dismissed. Entitlement to service connection for heart palpitations is dismissed. Entitlement to service connection for a recurrent ovarian cyst is dismissed. Entitlement to service connection for a left leg disability is dismissed. Entitlement to service connection for an upper respiratory infection is dismissed. Entitlement to an increased rating of 100 percent for an acquired psychiatric disorder to include PTSD, major depressive disorder, substance abuse disorder, and cannabis use disorder (psychiatric disability) is granted. Entitlement to a total disability based on individual unemployability (TDIU) is denied. Entitlement to an earlier effective date prior to February 24, 2017 for a 70 percent rating for a psychiatric disability is denied. Entitlement to an increased rating in excess of 10 percent for tinnitus, including on an extra-schedular basis, is denied. Entitlement to an earlier effective date for the grant of service connection for tinnitus is dismissed. Entitlement to an increased rating of 50 percent for migraines is granted. Relevant service records having been received following the issuance of a final rating decision denying the claims on the merits, the claims for service connection for a bilateral foot disability, to include bilateral plantar fasciitis, pes planus, a left foot acquired deformity, and a left bunion (bilateral foot disabilities) are reconsidered. Relevant service records having been received following the issuance of a final rating decision denying the claim on the merits, the claim for service connection for an upper and lower back disability is reconsidered. New and material evidence having been received, the claim for service connection for hearing loss is reopened. Entitlement to service connection for hearing loss is denied. Entitlement to special monthly compensation (SMC) based on housebound status is granted. REMANDED Entitlement to an increased rating for acne is remanded. Entitlement to an increased rating for herpes is remanded. Entitlement to service connection for bilateral foot disabilities is remanded. Entitlement to service connection for an upper and lower back disability is remanded. FINDINGS OF FACT 1. On January 12, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through her authorized representative, that a withdrawal of the appeal of an increased rating for allergic rhinitis and service connection for a left leg disability, recurrent ovarian cyst, heart palpitations, and upper respiratory infection was requested. 2. The Veteran's psychiatric symptoms amount to total occupational and social impairment. 3. From February 24, 2017, the entire period on appeal, the Veteran has a schedular rating of 100 percent for her service-connected psychiatric disabilities, rendering her TDIU claim moot as of that date because the claim is largely premised on her psychiatric disability manifestations. 4. Entitlement to a 70 percent (now 100 percent) rating for a psychiatric disability did not become factually ascertainable within one year prior to the date the increased rating claim was received. 5. The Veteran has the maximum permissible schedular rating for tinnitus; referral of this claim for extra-schedular consideration is not warranted because her claimed symptoms are already adequately compensated by the rating criteria. 6. The Veteran's initial claim for service connection for tinnitus was granted in October 2012 with an effective date of April 27, 2012; the Veteran did not appeal the assigned effective date within a year, and the October 2012 decision became final. 7. The evidence establishes that the Veteran's migraines manifest in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 8. In an October 2012 rating decision, service connection for various foot disabilities, hearing loss, and a back disability were denied. The Veteran did not appeal, and new and material evidence was not added to the claims file within a year of its issuance. The decision became final. 9. Service records added to the record after the October 2012 denial on the merits is relevant to the claims for service connection for bilateral foot disabilities and back disabilities. 10. Evidence added to the record since the October 2012 denial on the merits is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for hearing loss. 11. The preponderance of the evidence of record is against finding that the Veteran has had hearing loss at any time during or approximate to the pendency of the claim. 12. The preponderance of the evidence establishes that the Veteran's service-connected psychiatric disabilities render her housebound. CONCLUSIONS OF LAW 1. The criteria for dismissal of entitlement to service connection for an upper respiratory infection, heart palpitations, left leg, ovarian cyst, and an increased rating for allergic rhinitis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for a 100 percent disability rating for psychiatric disabilities have been met as of February 24, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The issue of entitlement to a TDIU has been rendered moot. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16; Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). 4. The criteria for entitlement to an earlier effective date prior to February 24, 2017 for a 70 percent (now 100 percent) rating for psychiatric disabilities have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 5. The criteria for entitlement to a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (b)(1), 4.87, Diagnostic Code 6260. 6. The Veteran's free-standing claim for an effective date prior to April 27, 2012, for tinnitus is not permitted by law. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. § 3.400; Rudd v. Nicholson, 20 Vet. App. 296 (2006). 7. The criteria for an increased rating of 50 percent for migraines have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 8. Relevant service records have been received to reconsider the claims for service connection for bilateral foot disabilities and back disabilities. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (c)(1). 9. New and material evidence has been received to reopen the claim for service connection for hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 10. The criteria for service connection for hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 11. The criteria for SMC based on housebound status have been met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2007 to April 2012. These matters are on appeal to the Board of Veterans' Appeals (Board) from a September 2017 rating decision. A hearing was held with the undersigned Veterans Law Judge in January 2021. 1. Withdrawn claims At the hearing, the Veteran verbally indicated she was withdrawing her increased rating claim for allergic rhinitis as well as her claims for service connection for a left leg disability, recurrent ovarian cyst, upper respiratory infection, and heart palpitations. The transcript makes clear that the withdrawal was clear, unambiguous, and made with the Veteran's full understanding of the consequences. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). Moreover, the Veteran, through her representative, reiterated the voluntary withdrawal in January 2021 written correspondence. Thus, although some testimony regarding a left leg disability was given in the hearing, the Board finds that all claims were successfully withdrawn. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran, through her representative, has withdrawn her increased rating claim for allergic rhinitis as well as her claims for service connection for a left leg disability, recurrent ovarian cyst, upper respiratory infection, and heart palpitations and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals of the above-listed issues and they are dismissed. 2. Entitlement to an increased rating in excess of 70 percent for psychiatric disabilities The Veteran contends she is entitled to a higher rating for her psychiatric disabilities. In a September 2017 rating decision, the Veteran's disability rating was increased to 70 percent disabling effective February 24, 2017, the date her increased rating claim was received. In an April 2018 rating decision, she was assigned a temporary total evaluation from March 5, 2018 to April 1, 2018, and her rating returned to 70 percent thereafter. The Board also notes that the Veteran is currently service connected for major depressive disorder with substance abuse disorder and cannabis use disorder. However, a May 2021 VA opinion clarifies that these disabilities are progressions of her service-related PTSD. The Board has reframed the psychiatric disability accordingly. Psychiatric disabilities are rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. The May 2021 VA examiner indicated it was not possible to differentiate the symptoms of the Veteran's various psychiatric disorders as they all overlap. Therefore, the Board will rate the Veteran based on the frequency, severity, and duration of her combined psychiatric symptoms. See 38 C.F.R. § 4.126. A 70 percent rating 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; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is 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; memory loss for names of close relatives, own occupation, or own name. As the United States Court of Appeals for the Federal Circuit has explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation... requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. Furthermore, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126 (a). While the veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Veteran filed an increased rating claim that was received on February 24, 2017. The Board will consider the evidence within one year prior to the claim, February 24, 2016. In a June 2017 VA examination, the examiner opined that the Veteran's symptoms resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. At the time, the Veteran was residing with her ex-husband, three children, and great aunt. She was legally divorced from her former spouse due to incidents of domestic violence and rape but had reunited with him in 2015. She reported that she had an associate degree in general studies and worked at a Veterans Center from 2012 to 2014. She reported she used to work for a cleaning company but was terminated for violent tendencies. She endorsed symptoms of depressed mood, fatigue, hopelessness, thoughts of self-harm, poor self-esteem, self-worth, and self-concept, decreased motivation, and sleeping difficulty. There was a history of domestic violence with police involvement, often coinciding with drug and alcohol use. She remarked that she had suicidal ideations every day, but she did not act upon them because of her children. In a July 2018 VA examination, the examiner opined that the Veteran's symptoms resulted in occupational and social impairment with deficiencies in most areas. At the time, she lived with her three children in low-income housing. She noted a pattern of multiple physical and sexual assaults within her marriage and identified a pattern of tolerating the abuse and repeated attempts at reconciliation. She was unemployed; she previously held a part-time job as a clerk at a gas station for approximately 3 months but could not tolerate the stress of dealing with the public, particularly men. She had recently been admitted to a VA rehabilitation program for PTSD and substance abuse. She described a complete lack of motivation to get out of bed and care for herself or her children. She endorsed problems with short-term memory and concentration, a decreased appetite, and suicidal and irrational thoughts. She had recently been arrested and was evicted from her home, forcing her and her children to live in a homeless shelter. She endorsed an ongoing pattern of problematic alcohol and cannabis use. Her listed symptoms were depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, inability to establish and maintain effective relationships, neglect of personal appearance and hygiene, difficulty adapting to stressful circumstances, and intermittent inability to perform activities of daily living. She endorsed suicidal ideation. She harbored extreme anger and hostile thoughts directed at her ex-husband but was not seen as an imminent risk to self or others. The examiner deemed the Veteran to be credible and found that the evaluation represented a progressive decline in overall functioning. In a May 2021 VA examination, the examiner opined that the Veteran's symptoms resulted in occupational and social impairment with deficiencies in most areas. Her listed symptoms were depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, impairment of short- and long-term memory, difficulty in understanding complex commands, impaired judgment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances and establishing and maintaining effective relationships, a persistent danger of hurting self or others, and neglect of personal appearance and hygiene. A May 2021 private psychologist completed a Disability Benefits Questionnaire (DBQ) wherein he opined that the Veteran's symptoms resulted in total occupational and social impairment. The VA treatment records consistently show significant life stressors exacerbating the Veteran's psychiatric symptoms, such as abusive relationships, unemployability and financial stress, several relocations, and difficulty caring for herself and her young children throughout the appeal period. In a March 2021 statement, the Veteran endorsed frequent alcohol abuse and daily suicidal ideations. She reported two suicide attempts in August 2018 and July 2019. She experiences paranoia, frequent panic attacks and aggression, and is unable to maintain relationships because of her inability to trust men. She stated she can go weeks without showering and feels mentally and physically confined to the home because of her anxiety when she must leave. The Veteran's sister submitted a statement explaining that since service, the Veteran has moved from state to state, has a hard time keeping a job, and has had to be bailed out of jail. She has had many failed relationships over the years which end violently. Her sister fears for the Veteran's well-being daily. She explained that recently the Veteran had become a recluse and never leaves the house. She no longer keeps up with personal hygiene and had become suicidal. In her hearing, the Veteran stated she has not worked full time since service and would not be able to maintain substantially gainful employment. She elaborated that she is unable to even leave her house and must have her groceries delivered. The record is clear that the Veteran's psychiatric symptoms result in total occupational and social impairment. The most recent VA examination and private DBQ are the most probative because the findings are most consistent with the other evidence of record. The Veteran's lay statements in correspondence and her hearing are both credible and highly probative as they are consistent with her contemporaneous reports in the medical records. Her symptoms of aggression, substance abuse, and an inability to behave appropriately around others renders her incapable of maintaining gainful employment. Despite years of counseling and treatment, she is unable to maintain healthy relationships and effectively care for herself or her children, evinced by frequent relocation, inability to maintain housing, frequent unemployment, and continued substance abuse leading to arrests. Consistent with the rating criteria, the Veteran's symptoms manifest in a persistent danger of hurting herself or others and intermittent inability to perform activities of daily living. The frequency, severity, and duration of her symptoms, both listed and unlisted in the criteria, result in total occupational and social impairment throughout the appeal period, warranting a 100 percent rating as of February 24, 2017. 3. Entitlement to a TDIU The Veteran contends she is unemployable due to her psychiatric disabilities as well as pain from her physical disabilities and migraines. The record is clear that the Veteran's mental state renders her unable to maintain gainful employment; however, as her psychiatric disabilities are now rated 100 percent disabling, the issue of entitlement to a TDIU is rendered moot. The Board notes that the presence of a schedular 100 percent disability rating does not necessarily render the issue of TDIU moot. See Bradley, 22 Vet. App. at 293-94 (holding that 100 percent evaluation does not render a TDIU claim moot where there is a possibility that TDIU will impact entitlement to special monthly compensation (SMC) based on receipt of service connection for a disability with a 100 percent rating and another with a separate 60 percent rating). That is especially true if the Veteran is in receipt of a 100 percent disability rating, but his unemployability is alleged based on an entirely separate service-connected disability. See id. That is not the case here. While the Board acknowledges that the Veteran has physical disabilities such as migraines that likely affect her ability to work, the evidence establishes that it is the psychiatric disabilities that render her unemployable. Thus, under these circumstances, the Veteran's TDIU claim is moot as of February 24, 2017, which is the entire period on appeal. 4. Entitlement to an increased rating in excess of 10 percent for tinnitus The Veteran is currently in receipt of a 10 percent rating for tinnitus. Diagnostic Code 6260 contemplates the Veteran's diagnosis and symptoms of tinnitus, and, thus, she is appropriately rated under this code. No other codes are applicable. Under Diagnostic Code 6260, a single 10 percent evaluation is assigned for "recurrent" tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2). According to 38 C.F.R. § 3.321 (b)(1), an extra-schedular rating is warranted when the regular schedular standards are impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. Although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Court of Appeals for Veterans Claims (Court) has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the Rating Schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extra-schedular rating under 38 C.F.R. § 3.321 (b)(1). The Board has considered whether referral for extra-schedular consideration is warranted. In her hearing, the Veteran stated that the ringing in her ears affects her hearing. In her June 2017 VA examination, she endorsed daily buzzing in the ears lasting anywhere from a few seconds to a few minutes. She explained that it causes her to lose her balance at times and can keep her up at night if the ringing occurs while she is in bed. Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). Tinnitus is often subjective in nature; indeed, because of its inherently subjective nature, even a layman such as the Veteran is considered competent to report the observable manifestations of this condition like this ringing, buzzing, roaring, or clicking sound mentioned. She is competent to provide evidence regarding tinnitus, as it is a condition readily apparent through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a veteran is competent to report symptoms that require only personal knowledge, not medical expertise, as they come to him through his senses). Because tinnitus is "subjective," its existence is generally determined by whether the claimant claims to experience it. Indeed, for VA compensation purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Acknowledging this, it stands to reason that tinnitus may have some effect on sleep to some degree if the noises occur at nighttime. However, the Board finds that the functional impact of her tinnitus, to include temporary disorientation such as loss of balance and disturbed sleep, are adequately compensated by the 10 percent rating. In other words, the evidence does not present such an exceptional disability picture that the available schedular evaluation is inadequate. Consequently, referral for extra-schedular consideration is not warranted. As there is no legal basis upon which to award an increase or refer for extra-schedular consideration, the Veteran's claim must be denied. 5. Entitlement to an increased rating of 50 percent for migraines The Veteran is currently in receipt of a noncompensable rating for her migraines. As stated above, the Board will consider the evidence as of February 24, 2016, one year prior to receipt of her increased rating claim. See Francisco, 7 Vet. App. 55. Diagnostic Code 8100 provides that migraines with characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating. Migraines with characteristic prostrating attacks occurring on an average once a month over last several months warrant a 30 percent rating while migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. Finally, less frequent attacks are rated as noncompensable. 38 C.F.R. § 4.124a. The rating criteria do not define "prostrating." By way of reference, the Board notes that, according to Webster's New World Dictionary of American English, Third College Edition (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in Dorland's Illustrated Medical Dictionary 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." In a February 2021 VA examination, the Veteran explained that she gets prostrating migraine attacks at least five days weekly that have been occurring more frequently and lasting longer. She is prescribed medication for her migraines. She experiences pulsating or throbbing head pain localized to one side of the head that worsens with physical activity. She has accompanying symptoms of nausea, vomiting, sensitivity to light and sound, sensory changes, and changes in vision. The examiner opined that the Veteran experiences very prostrating and prolonged migraine attacks that are productive of severe economic inadaptability. The examiner explained that the migraines result in an inability to focus, concentrate, or comprehend during attacks and may require time off work. In her March 2021 statement, the Veteran explained that she has tried many methods of treatment to alleviate the migraines to no avail. She suffers nearly daily from a searing pain on the right side of her head and behind her right eye. These headaches happen "all the time" and are "debilitating" and "severe" requiring her to lie down for hours until she can function again. In her hearing, the Veteran stated she gets headaches for 17 or 18 days at a time that do not cease when she goes to bed or wakes up. She has not found any form of treatment to ease the debilitating pain other than laying down in a dark, quiet, cool room. It causes her to become irritable. The Veteran's symptoms fit squarely within the 50 percent rating criteria. Her migraines occur so frequently and are of such severity and duration that it causes economic inadaptability. The symptomatology of debilitating pain and associated symptoms requiring her to lay down in a dark room are consistent with the definition of prostrating. Both the lay and medical evidence of record establishes entitlement to a 50 percent rating. Because the increase did not become factually ascertainable within one year prior to the increased rating claim, the 50 percent rating is assigned as of February 24, 2017, but no earlier. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010), interpreting 38 U.S.C. § 5110 (b)(3) and 38 C.F.R. § 3.400 (o)(1), (2). New and Material Evidence An October 2012 rating decision denied the Veteran's claims for a back disability, foot disabilities, and hearing loss. The decision became final. The Veteran filed to reopen in February 2017; a September 2017 rating decision denied the claims to reopen based on a lack of new and material evidence, and an August 2018 Statement of the Case (SOC) affirmed the denials. Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105 (c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Section 3.156 (c) is an exception to the general rule in § 3.156 (a), which only permits claims to be reopened on the submission of new and material evidence. Section 3.156 (c) also provides for different effective dates in certain conditions. In contrast to the general rule, § 3.156 (c) requires the VA to reconsider a veteran's claim when relevant service department records are newly associated with the veteran's claims file, whether or not they are "new and material" under § 3.156 (a). 38 C.F.R. § 3.156 (c)(1) (noting that § 3.156 (c) applies "notwithstanding paragraph (a)"). In other words, § 3.156 (c) serves to place a veteran in the position he would have been had the VA considered the relevant service department record before the disposition of his earlier claim. 6. Bilateral foot disabilities 7. Back disabilities At the time of the October 2012 rating decision, only a portion of the service treatment records (STRs) were available for review. As of May 2021, the entirety of the STRs were added to the claims file, to include numerous complaints of foot and back pain with various diagnoses rendered. The records are relevant because the claims were denied in October 2012 based on no diagnoses. As relevant service records have since been added to the claims file, the Board will reconsider the claims for service connection for bilateral foot disabilities and back disabilities. For reasons explained below, the evidence warrants remand for new VA examinations. 8. Hearing loss At the time of the October 2012 rating decision, the Veteran's in-service audiograms were part of the record. The added STRs in May 2021 do not include additional relevant evidence relating to hearing loss; consequently, 38 C.F.R. § 3.156 (c)(1) is inapplicable for this claim. Regardless, new and material evidence has been submitted to reopen the claim. The Veteran contended in her hearing that she has hearing loss. VA treatment records reflect that the Veteran is hard of hearing. While the Veteran is not competent to render a complex medical diagnosis such as hearing loss, she is competent to relay observable symptoms such as difficulty hearing. Consistent with Justus, the Board finds that the low threshold of credibility in these circumstances has been met. Her statements, coupled with the VA medical record notation of "hard of hearing," sufficiently establish both new and material evidence. The claim is reopened. 9. Entitlement to an earlier effective date prior to February 24, 2017 for a 70 percent for a psychiatric disability The Veteran contends she is entitled to an earlier effective date for the assignment of 70 percent, now 100 percent, for her psychiatric disability. 38 C.F.R. § 3.400 (o)(2) provides with regard to disability compensation for a disability for which service connection has already been established, the earliest date that it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within one year from such date, otherwise date of receipt of claim. When medical records indicated an increase in a disability, receipt of such medical records may be used to establish effective dates for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within one year of the date of the report of examination, hospitalization, or medical treatment. In other words, if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the award is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. See Gaston, 605 F.3d at 984, interpreting 38 U.S.C. § 5110 (b)(3) and 38 C.F.R. § 3.400 (o)(1), (2). Here, the evidence does not show that the increase in the Veteran's symptoms occurred or were factually ascertainable at either 70 percent or 100 percent disabling within the one year prior to the claim. Because there is no date that the increase became factually ascertainable, the effective date is the date of receipt of the increased rating claim. Thus, the appropriate effective date for the Veteran's 70 percent rating, as well as her now 100 percent rating, is February 24, 2017, but no earlier. 10. Entitlement to an earlier effective date for the grant of service connection for tinnitus The Veteran was granted service connection for tinnitus in an October 2012 rating decision. As explained above, the Veteran did not appeal that decision and it became final. She filed an increased rating claim that was received on February 24, 2017. Following the September 2017 rating decision denying the increased rating claim, the Veteran submitted a Notice of Disagreement indicating disagreement with both the rating and the effective date of the award. The Court has emphasized that an effective date cannot be challenged with a freestanding earlier effective date claim. Rudd, 20 Vet. App. 296 (2006). Rather, if a claimant wishes to obtain an effective date earlier than that assigned in a rating decision, the claimant must file a timely appeal to that decision awarding the benefit or submit new and material evidence within the one-year appeal period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.201. Otherwise, the decision becomes final, and the only basis for challenging the effective date is a motion to revise the decision on the basis of clear and unmistakable error in the decision assigning the effective date, the reversal of which would result in an earlier effective date. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105; Rudd, 20 Vet. App. 296 at 299. Here, the Veteran has only been assigned the initial disability rating of 10 percent at the time she was awarded service connection in October 2012. She was assigned an effective date of April 27, 2012, the date after discharge from service. The Veteran did not appeal this assigned effective date until December 2017, which is untimely and constitutes a free-standing earlier effective date claim. The RO informed the Veteran of this in a June 2018 letter. The Veteran's free-standing earlier effective date claim related to her tinnitus is improper and must be dismissed. 11. Entitlement to service connection for hearing loss The Board initially notes that the Veteran's claim was filed as "muffled hearing." The Veteran clarified in the hearing that her claim is for hearing loss. She has contended she has hearing loss as a result of her in-service duties requiring her to be on the flight line around loud airplanes. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In cases where a hearing loss disability is claimed, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Turning to the evidence, in-service audiograms do reflect some threshold shifts between 2007 and 2011; however, the audiometric data showed no hearing loss for VA purposes consistent with 38 C.F.R. § 3.385. There were no complaints or treatment for hearing loss or a hearing-related condition. A May 2012 VA examination showed puretone thresholds at 10 decibels or lower from 500 to 4000 Hz. Her speech discrimination scores from the Maryland CNC list were 100 percent bilaterally. The examiner concluded the Veteran had normal hearing in both ears, despite the Veteran's reports of occasional sensation of muffled hearing as if there were water in her ears. There was no history of otitis media, otalgia, or vertigo. In a June 2017 VA examination, the examiner commented that in-service audiograms were within normal range with no significant shifts in service. Her highest puretone threshold was 15 decibels in the right ear at 1000 Hz with all other thresholds 10 decibels or lower. Her speech discrimination scores from the Maryland CNC word list were 96 percent in the right ear and 100 percent in the left. The examiner did note abnormal ipsilateral and contralateral acoustic reflexes bilaterally but found normal hearing in both ears. The evidence does not establish a diagnosis of hearing loss. In the VA treatment records, there is one notation that the Veteran is hard of hearing, but it is not accompanied by any audiometric findings or any audiological treatment. Thus, it is afforded limited probative value. The Board has considered the Veteran's lay statements that she has difficulty hearing. While she is competent to report such observational symptomatology, a diagnosis of hearing loss for VA purposes is a complex medical determination that a layperson such as the Veteran is not competent to make. The objective medical evidence does not establish a current diagnosis; as the first element of service connection has not been met, the claim is denied. 12. Entitlement to SMC based on housebound status Under Akles v. Derwinski, the Board has jurisdiction over a claim for SMC as inferred based on the record. 1 Vet. App. 118, 121 (1991) (finding that a claim for an increased rating can include entitlement to SMC as an inferred issue); see also Bradley, 22 Vet. App. 280 (stating that SMC benefits are to be accorded when a veteran becomes eligible without need for a separate claim). Accordingly, this issue has been separately characterized in the issues above. SMC at the housebound rate is payable when a veteran has a single service-connected disability rated 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i)(1). The Veteran now has a 100 percent disability rating for her psychiatric disabilities, and she has testified at her hearing and in correspondence that she is unable to leave her house even to run errands and sometimes even cannot leave her bed due to severe psychiatric symptoms. Her sister confirmed that the Veteran does not leave the house and has become a recluse, failing to even maintain self-care. The Board finds this testimony credible, and it is consistent with the other evidence of record showing an inability to care for herself and others and an inability to conduct ordinary activities of daily life, which often include leaving the house and being in public. The requirements for entitlement to SMC based on housebound status have been met, and the inferred claim is granted. REASONS FOR REMAND 13. Entitlement to an increased rating for acne 14. Entitlement to an increased rating for herpes The Veteran has contended she is entitled to increased ratings for her service-connected acne and herpes. The August 2018 SOC denied the claims because the Veteran did not provide good cause for failing to attend scheduled VA examinations. However, the record contains August 2017 correspondence from the Veteran explaining that she did not have childcare for the scheduled examinations and requesting they be rescheduled. VA examinations for psychiatric disabilities and migraines were subsequently scheduled; examinations for acne and herpes were not. VA regulations state that when a claimant fails to report for an examination scheduled in conjunction with an increased rating claim, the claim is to be denied. 38 C.F.R. § 3.655 (b). When a veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought and (2) whether the veteran lacked good cause to miss the scheduled examination. If these questions are answered in the affirmative, then the Board may apply 38 C.F.R. § 3.655 (b), including summary denial. Turk v. Peake, 21 Vet. App. 565, 569 (2008). The Board finds that good cause was shown for her failure to attend scheduled examinations. As she has contended her conditions have worsened and requested that the examinations be rescheduled, remand is warranted. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 15. Entitlement to service connection for bilateral foot disabilities The Veteran has filed separate claims for service connection for bilateral plantar fasciitis, pes planus with an acquired left foot deformity, and a left bunion. For purposes of efficiency in this decision, the Board has combined the claims. The Veteran contends her claimed foot disabilities were incurred in and diagnosed in service. The STRs are replete with complaints of foot pain as well as notations of plantar fasciitis, pes planus with an acquired left foot deformity (equinus), and a left bunion. On her pre-discharge compensation claim, she wrote pes planus and plantar fasciitis. In a 2012 VA examination, the examiner indicated the Veteran never had pes planus, plantar fasciitis, or any other foot disability. The examiner noted that according to the Veteran, her conditions were diagnosed in October 2011 and she had been attending physical therapy for the plantar fasciitis for the prior three months. The examiner indicated no pain on use of the feet nor any other symptoms. She indicated that imaging studies had been performed that showed no significant result. The radiology imaging reports from February 2012 showed no significant abnormality of either foot with no evidence of pes planus. Post-service VA treatment records contain notations of bilateral plantar fasciitis. While there is a current diagnosis of plantar fasciitis as well as an in-service diagnosis, the Board finds that a medical opinion is needed to clarify all diagnoses, reconcile the 2012 examiner's finding of no diagnosis of any foot disability based on x-rays, and provide a nexus opinion. 16. Entitlement to service connection for a back disability The Veteran has filed claims for service connection for both a lower and upper back disability and contends that both were incurred by in-service injuries. The STRs are replete with complaints of chronic back pain. The Veteran has endorsed several in-service injuries, many of which she described contemporaneously while receiving in-service treatment. Post-service VA treatment records show complaints of upper and lower back pain with various assessments of spinal strains, degenerative disc disease, and chronic pain syndrome. In January 2021, an MRI of the lumbar spine was negative for any abnormality. However, November 2020 X-rays showed mild arthritic changes to the neck and low back. In a 2012 VA examination for the thoracolumbar spine, the examiner indicated there was no diagnosis. The Veteran endorsed mid-back pain at the left rhomboid muscle. She was told she had a pinched nerve with burning pain in that area. She reported chronic lower back pain with left-sided sciatica. She had been attending physical therapy. The Veteran had normal range of motion and no symptoms or abnormalities were noted. X-rays conducted at the time were normal with no abnormality or evidence of arthritis. Considering the in-service and post-service complaints of upper and lower back pain, the Board finds that a medical opinion is needed to clarify all diagnoses, reconcile the 2012 examiner's finding of no diagnoses, and provide a nexus opinion. The matters are REMANDED for the following action: 1. Schedule VA examinations for the Veteran's increased rating claims for acne and herpes to determine the current severity of her service-connected disabilities. 2. Schedule VA examinations for the Veteran's bilateral foot disability claims. All pertinent testing shall be conducted. The examiner must identify any diagnoses pertaining to the feet, to specifically include whether plantar fasciitis, pes planus, and a left bunion exist. The examiner must opine whether it is at least as likely as not that any diagnosed foot disability is related to service. Additionally, the examiner must address the discrepancy between the in-service foot complaints and medical treatment, the post-service treatment records notating plantar fasciitis, and the 2012 clinical and radiographic findings of no foot disability. 3. Schedule VA examinations for the Veteran's claimed back disabilities. All pertinent testing shall be conducted. The examiner must identify any diagnoses pertaining to the back. The examiner must first opine whether any diagnosed back disability pre-existed service. If the answer is yes, the examiner must next opine whether active service aggravated such disability beyond natural progression. If the answer is no, the examiner must opine whether it is at least as likely as not that any diagnosed back disability is related to service or whether she has a chronic disability that has been continuous since service. In doing so, the examiner must consider the Veteran's lay statements regarding her in-service injuries, to include falls and an epidural that pinched a nerve. Additionally, the examiner must address the discrepancy between the in-service back complaints and medical treatment, the post-service treatment records, and the 2012 clinical and radiologic findings. 4. Reconsider the claims for service connection for bilateral foot disabilities and back disabilities consistent with 38 C.F.R. § 3.156 (c)(3). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, 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.