Citation Nr: 21015378 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-14 383 DATE: March 17, 2021 ORDER The December 2015 Notice of Disagreement (NOD) with the June 2011 rating decision denying entitlement to service connection for a liver disorder was not timely and the issue is denied. New and material evidence having been received, the petition to reopen the claim of service connection for a liver disorder is granted. Entitlement to a rating of 10 percent, but no higher, for the Veteran’s hypertension is granted. Entitlement to an effective date prior to March 10, 2017, for the grant of service connection for tinnitus is denied. Entitlement to a rating in excess of 30 percent for service-connected right shoulder disability from March 10, 2017, is denied. An effective date prior to March 10, 2017, for the 30 percent disability rating awarded for service-connected right shoulder disability have not been met. Entitlement to service connection for an acquired psychiatric disability, to include depressive disorder and posttraumatic stress disorder (PTSD), is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to an initial compensable rating for hemorrhoids is remanded. Entitlement to service connection for a liver disability is remanded. FINDINGS OF FACT 1. In a June 2011 rating decision, the Regional Office (RO) denied service connection for a liver disorder. The Veteran filed a timely Notice of Disagreement (NOD) in July 2011. A May 2013 Statement of the Case (SOC) was re-mailed to the Veteran’s correct address in August 2013. He did not file a timely Form 9, or Substantive Appeal, within sixty (60) days. Thus, the June 2011 rating decision became final. 2. The December 2015 NOD to the June 2011 rating decision was not timely. 3. The evidence of record since the June 2011 rating decision is not duplicative or cumulative of evidence previously of record and it raises the reasonable possibility of substantiating the Veteran’s claim of service connection for a liver disorder. 4. Throughout the rating period on appeal, the Veteran’s hypertension has been characterized by diastolic readings predominantly 100 and he requires continuous medication for control. 5. The Veteran re-filed his claim of service connection for hearing loss on March 10, 2017. He was awarded service connection for hearing loss and tinnitus in a July 2017 rating decision, effective March 10, 2017. He did not file a claim for tinnitus prior to March 10, 2017. 6. Throughout the rating period on appeal, there is no evidence that the Veteran’s right shoulder disability has been manifested by limitation of motion to 25 degrees from side. 7. The Veteran’s request for an increased rating for his service-connected right shoulder disability was received on March 10, 2017. 8. A factually ascertainable increase in the Veteran’s right shoulder disability was not shown to have occurred within one year prior to the March 10, 2017, claim. 9. The evidence is at least in equipoise as to whether the Veteran’s acquired psychiatric disability, to include depressive disorder and PTSD, is related to his period of active service. 10. The Veteran’s service-connected right shoulder, hemorrhoids, PTSD, depressive disorder, lumbar spine, and sleep apnea disabilities preclude gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The December 2015 NOD to the June 2011 rating decision was not timely and the appeal is dismissed. 38 U.S.C. §§ 5104, 7105; 38 C.F.R. §§ 2.406, 3.103(f), 20.203. 2. The criteria for reopening the claim of service connection for a liver disorder have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 3. The criteria for a disability rating of 10 percent, but no higher, for the Veteran’s service-connected hypertension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7101. 4. The criteria for an effective date prior to March 10, 2017, for the award of service connection for tinnitus is not warranted. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.151, 3.159, 3.160, 3.400. 5. The criteria for a disability rating in excess of 30 percent for the Veteran’s service-connected right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5201. 6. The criteria for an effective date prior to May 10, 2017, for the award of a 30 percent disability rating have not been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.151, 3.155, 3.159, 3.160, 3.400. 7. The criteria for service connection for an acquired psychiatric disability have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 8. The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19.  REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1990 to May 2010. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating and administrative decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a February 2013 rating decision, the RO denied service connection for depression and a mood disorder. New and material evidence was submitted within one year and a request for reconsideration was received prior to the subsequent January 2014 rating decision. Thus, the Board finds that the February 2013 rating decision did not become final. In January 2016 and March 2017 Administrative decisions, the RO did not accept the December 2015 notice of disagreement for the Veteran’s liver disability as timely. In a June 2017 rating decision, the RO increased the rating for the Veteran’s right shoulder disability to 30 percent, effective March 10, 2017, continued the noncompensable rating for hypertension, and continued the previous denial of service connection for a liver disability. In a July 2017 rating decision, the RO granted service connection for tinnitus and assigned a 10 percent rating, effective March 10, 2017. In a September 2017 rating decision, the RO granted service connection for hemorrhoids and assigned a noncompensable rating, effective March 10, 2017. In a February 2019 rating decision, the RO denied entitlement to a TDIU. These matters were last before the Board in August 2019, at which time they were remanded for additional evidentiary development. 1. Whether the December 2015 Notice of Disagreement (NOD) with the June 2011 rating decision denying entitlement to service connection for a liver disorder was timely. A claimant is entitled to notice of any decision by VA affecting the payment of benefits or the granting of relief. 38 U.S.C. § 5104. Such notice must inform a claimant of the right to initiate an appeal by filing a notice of disagreement (NOD), plus the periods in which an appeal must be initiated and perfected. 38 C.F.R. § 3.103(f). A claimant may then initiate an appeal from a VA decision by the timely filing of a NOD in writing, which is within one year from the date that the RO mails the notice of the decision. 38 C.F.R. § 20.203. A substantive appeal must be filed within sixty (60) days from the date the RO mailed a claimant the Statement of the Case (SOC) or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever is later. 38 U.S.C. § 7105. Notices in contested claims will be forwarded to the last address of record of the parties concerned and such action will constitute sufficient evidence of notice. 38 C.F.R. § 2.406. In the present case, the RO issued a rating decision in June 2011, which, in relevant part, denied service connection for a liver disorder. The Veteran was sent this rating decision in a June 2011 notification letter and in July 2011 he filed a timely Notice of Disagreement (NOD). In May 2013, the RO issued a Statement of the Case (SOC) for the issue of service connection for a liver disorder. This SOC was initially sent to the incorrect address in May 2013 with a copy to the Veteran’s representative at the time, DAV. DAV noticed the error and notified the VA of the Veteran’s correct address in a letter dated in May 2013. The RO subsequently re-mailed the May 2013 SOC to the correct address in August 2013 and put the notification on the initial SOC. See 05/01/2013, SOC. The Veteran and/or his representative did not file a Form 9 or request an extension of time to file a Form 9 to the May 2013 SOC that was re-mailed in August 2013. In December 2015, the Veteran filed a Notice of Disagreement (NOD) for the denial of service connection for a liver disorder. In January 2016 and March 2017, the VA informed the Veteran that his NOD was not accepted as timely and the current appeal ensued. After a review of the evidence, the Board finds that the December 2015 NOD to the June 2011 rating decision was not timely. In this regard, the Veteran did file a timely NOD to the June 2011 rating decision in July 2011. However, he did not file a timely Form 9 to the May 2013 SOC that was re-mailed in August 2013 or request an extension of time to file the Form 9. Thus, the June 2011 rating decision became final. The Board acknowledges the November 2020 argument by the Veteran’s counsel and the arguments by the Veteran that his NOD was filed on time but that VA lost his paperwork and that he did not receive a copy of the SOC. However, as discussed, the Veteran did file a timely NOD in July 2011 to the June 2011 rating decision. However, he did not file a Form 9, or substantive appeal, within 60 days of the Statement of the Case (SOC) that was re-mailed in August 2013 and did not request an extension of time. As acknowledged by the Veteran’s attorney in November 2020, the Veteran’s representative at the time, DAV, also received a copy of the SOC in May 2013 and notified VA to re-send the SOC. At no point in time did the DAV submit a Form 9, or substantive appeal, on behalf of the Veteran. Lastly, the correct address was listed on the Statement of the Case (SOC) that was re-mailed in August 2013, which constitutes sufficient evidence of notice. See 38 C.F.R. § 2.406. Accordingly, the Board finds that the December 2015 NOD to the June 2011 rating decision was not timely filed. 2. Whether new and material evidence has been received to reopen the claim of service connection for a liver disorder. Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108.  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. 38 C.F.R. § 3.156(a).  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. Id.  The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992).  The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In the present case, the RO denied service connection for a liver disorder in a June 2011 rating decision because there was no evidence of a present liver disorder or that any liver disorder commenced in service. The evidence at the time of the June 2011 rating decision consisted of the claim form, service treatment records (STRs), military personnel records, and Form DD 214. Since the June 2011 rating decision, additional treatment records, records from the Social Security Administration (SSA), and statements from the Veteran have been obtained and associated with the claims file. The Board finds that new and material evidence has been received to reopen the claim of service connection for the Veteran’s liver disorder. The evidence is new, as it was not part of the record at the time of the June 2011 rating decision. It is also material, given that it relates to unestablished facts necessary to substantiate the claim. Specifically, the additional medical records reveal a diagnosis of fatty liver disease and an abnormal liver function test. Moreover, the Veteran submitted a statement in December 2015 and indicated that he was prescribed Lipitor during active duty, which caused his liver disorder. Accordingly, the evidence is new and material and the claim of service connection for a liver disorder is reopened. 3. Entitlement to a rating of 10 percent, but no higher, for the Veteran's hypertension is granted. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.    In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 283 (1991).  Although the Veteran’s entire history is reviewed when assigning a disability rating pursuant to 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994).    Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.    If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.    When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In the present case, the Veteran filed a claim for a compensable rating for his service-connected hypertension in March 2017. He has been assigned a 0 percent rating pursuant to Diagnostic Code 7101. Under Diagnostic Code 7101, a 60 percent rating is warranted for diastolic pressure predominantly 130 or more; a 40 percent disability rating is warranted for diastolic pressure predominantly 120 or more; a 20 percent disability rating is warranted for diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more; and a 10 percent disability rating is warranted for diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more; or minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. See 38 C.F.R. § 4.104, Diagnostic Code 7101. Regarding the term “predominantly,” the regulations do not require every reading to meet the requisite thresholds, but the readings must more often than not be at or above those thresholds. The plain regulatory language sets forth the precise numeric thresholds for the average readings in diastolic pressure at 100 or more, or systolic pressure at 160 or more, which could be considered in two ways. Throughout the rating period on appeal, or from March 2017 and looking back one year to March 2016, the Veteran has been prescribed medication to control his hypertension. Moreover, the Board finds that his diastolic pressure has been predominantly 100 or more. Specifically, his treatment records reveal that his diastolic blood pressure readings in October 2016, December 2016, February 2017, July 2017, August 2017, and January 2018 were 100. However, at no point during the rating period has his diastolic pressure readings been 110 or more or systolic pressure readings been 200 or more. His treatment records from March 2016 reveal his blood pressure readings were recorded at their worst as 143/89 and 138/100. The Veteran was afforded a VA examination in October 2019 to assess the severity of his service-connected hypertension. The examiner indicated that his hypertension required continuous medication. His highest systolic pressure that day was 144 and diastolic pressure was 84. Accordingly, after a review of the evidence, the Board finds that a 10 percent rating is warranted for the Veteran’s service-connected hypertension given that he had diastolic pressure predominately of 100 and requires continuous medication. However, the Board finds that a higher rating is not warranted given that there is no evidence that his hypertension is manifested by diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. Thus, a rating of 10 percent, but no higher, for the Veteran’s hypertension is granted. 4. Entitlement to an effective date prior to March 10, 2017, for the grant of service connection for tinnitus. It is well established that the “effective date assigned for a secondarily service-connected condition is governed by 38 C.F.R. § 3.400,” Ellington v. Nicholson, 22 Vet. App. 141, 145 (2007), which provides that the effective date of an award of service connection will be the “date of receipt of claim, or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400(b)(2). The mere presence of medical evidence, including medical records, does not establish an intent on the part of the Veteran to seek secondary service connection. Brannon v. West, 12 Vet. App. 32, 35 (1998); see also MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006) (holding that medical records do not satisfy the regulatory requirements of an informal claim if the condition disclosed in the medical had not previously been determined to be service connected). Thus, any such medical records are insufficient to establish an application for service connection. See Lalonde v. West, 12 Vet. App. 377, 382 (1999) (stating that where a veteran had not been granted service connection, mere receipt of medical records could not be construed as an informal claim). In the present case, the Veteran filed a claim to reopen his previous denial of service connection for hearing loss in March 2017. In a July 2017 rating decision, the RO granted service connection for hearing loss and tinnitus, effective March 10, 2017, the date the claim of hearing loss was filed. This was based on the July 2017 VA examination, which concluded that his tinnitus was a symptom associated with his hearing loss. After a review of the evidence, the Board finds that an effective date prior to March 10, 2017, for the award of tinnitus is not warranted. Prior to March 10, 2017, the Veteran had not filed a claim of service connection for tinnitus. The Board acknowledges that the Veteran previously filed a claim for hearing loss that was denied in a June 2011 rating decision and that he reported tinnitus during the June 2010 VA examination. However, the receipt of medical records is insufficient to establish an application for service connection. Id. The Veteran filed no formal or informal claim prior to March 2017 for tinnitus. Accordingly, an effective date prior to March 10, 2017, for the award of service connection for tinnitus is not warranted. 5. Entitlement to a rating in excess of 30 percent for service-connected right shoulder disability from March 10, 2017. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 283 (1991). Although the Veteran’s entire history is reviewed when assigning a disability rating pursuant to 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran’s right shoulder disability has been rated under Diagnostic Code 5201, which pertains to limitation of motion. He has been assigned a 30 percent disability rating, effective March 10, 2017. Disabilities of the shoulder and arm are evaluated under rating criteria that contemplate ankylosis of scapulohumeral articulation (Diagnostic Codes 5200), limitation of motion of the arm (Diagnostic Code 5201), other impairment of the humerus (Diagnostic Code 5202), or impairment of the clavicle or scapula (Diagnostic Code 5203). Normal range of motion of the shoulder is as follows: forward elevation (flexion) to 180 degrees; abduction to 180 degrees; internal rotation to 90 degrees; and external rotation to 90 degrees. 38 C.F.R. § 4.71a, Plate I. Diagnostic Code 5200 rates ankylosis of the scapulohumeral joint. Where arm limitation of motion is limited to 25 degrees from the side, a 40 percent evaluation is assigned for the major side, under Diagnostic Code 5201. Limitation of motion midway between the side and shoulder level contemplates a 30 percent evaluation for the major side, and limitation of motion at shoulder level contemplates a 20 percent evaluation for the major side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Additionally, under Diagnostic Code 5202, for impairment of the humerus, a 20 percent rating is warranted when there is malunion, with moderate deformity, for the major arm; a 30 percent rating is warranted when there is marked deformity of the major arm. Also, under Diagnostic Code 5202, for recurrent dislocations of the major arm at the scapulohumeral joint, a 20 percent rating is granted with infrequent episodes, and guarding of movement only at shoulder level; a 30 percent rating is granted for the major arm when there are frequent episodes and guarding of all arm movements. For fibrous union of the major arm a 50 percent rating is assigned for the major arm. A 60 percent rating is warranted for nonunion (false flail joint) of the major arm. An 80 percent rating is warranted for loss of head of (flail shoulder) for the major arm. 38 C.F.R. § 4.71a, Diagnostic Code 5202. Further, under Diagnostic Code 5203, for impairment of the clavicle or scapula in the major arm, a 10 percent rating is granted for malunion or nonunion without loose movement and a 20 percent rating is granted for nonunion with loose movement or for dislocation. The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Diagnostic Codes 5200 and 5203 remained unchanged. Effective February 7, 2021, Diagnostic Code 5201 defines at shoulder level for a 20 percent rating as flexion and/or abduction limited to 90 degrees. Midway between side and shoulder level is now defined as flexion and/or abduction limited to 45 degrees for a 30 percent rating for major side and 20 percent for minor side. Flexion and/or abduction limited to 25 degrees from side is required for a 40 percent rating for the major side and 30 percent for the minor side. Effective February 7, 2021, Diagnostic Code 5201 now states with infrequent episodes, and guarding of movement only at shoulder level (flexion and/or abduction at 90 degrees) is required for a 20 percent rating for impairment of the humerus. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Also, functional loss due to pain must be supported by pathology and shown through objective observation. Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) (citing 38 C.F.R. § 4.40); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (relying on DeLuca for proposition that an adequate joint examination report must comply with § 4.40 and include an “opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time”). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Court of Appeals for Veterans Claims has held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. In the present case, the Veteran filed a claim for an increased rating for his service-connected right shoulder impingement with labral tear, status post arthroscopic acromioplasty with labral repair (right shoulder disability) in March 2017. The Veteran was afforded a VA examination in June 2017 to assess the severity of his service-connected right shoulder disability. Range of motion revealed flexion to 100 degrees, abduction to 100 degrees, external rotation to 60 degrees, and internal rotation to 60 degrees. Pain was noted on examination but did not result in additional functional loss. Range of motion after repetitive use was unchanged. During a flare-up, range of motion findings revealed flexion to 40 degrees, abduction to 40 degrees, external rotation to 10 degrees, and internal rotation to 10 degrees. Additional symptoms included weakened movement, swelling, instability of station, and disturbance of locomotion. There was objective evidence of pain on passive range of motion and non-weight bearing testing of the right shoulder. There was no ankylosis of the scapulohumeral. There was shoulder instability, dislocation, or labral pathology with a history of mechanical symptoms but no history of recurrent dislocation. There was malunion of the clavicle or scapula. There was no loss of head, nonunion, or fibrous union of the humerus. The Veteran underwent an arthroscopic rotator cuff repair in 2006 and continued to have weakness, pain, and limited range of motion with clicking and catching. The Veteran’s treatment records in January 2019 reveal right shoulder range of motion to 90 degrees for abduction, forward elevation to 100 degrees, internal rotation to 40 degrees, and external rotation to 45 degrees. The Veteran was afforded a VA examination in November 2019. Range of motion testing of the right shoulder revealed flexion to 90 degrees, abduction to 110 degrees, external rotation to 45 degrees, and internal rotation to 90 degrees. There was pain noted on examination, but it did not result in additional functional loss. There was no pain with weight bearing. After repetitive use testing, during a flare, and in passive range of motion, external rotation was limited to 40 degrees and the remainder of the range of motion remained the same. There was no evidence of pain when the right shoulder was used in non-weight bearing. There was no muscle atrophy and no ankylosis. The right shoulder did have a rotator cuff disability and there was shoulder instability, dislocation, or labral pathology and a history of mechanical symptoms. There was no history of recurrent dislocation. There was guarding of movement only at the shoulder level. There was no clavicle, scapula, or acromioclavicular joint or sternoclavicular joint condition suspected. There was no loss of head, nonunion, or fibrous union of the humerus. After a review of the evidence, the Board finds that a rating in excess of 30 percent is not warranted, as the competent and probative evidence does not reveal that right arm motion was limited to 25 degrees from side at any point during the appeal period. In this regard, range of motion findings revealed flexion at its worst to 40 degrees and abduction at its worst to 40 degrees during a flare as set forth in the June 2017 VA examination. The Board notes that there is no showing of flexion limited to 25 degrees from side. See 38 C.F.R. § 4.71a, Plate I. This is the same standard for higher rating under both the pre-amended and current revised Diagnostic Code 5201 for range of motion loss, effective February 7, 2021. Moreover, there is no evidence of ankylosis and no loss of head, nonunion, or fibrous union of the humerus to warrant a higher rating. In sum, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent for the Veteran’s right shoulder disability. Thus, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 6. Entitlement to an effective date prior to March 10, 2017, for the 30 percent disability rating awarded for service-connected right shoulder disability. In the present case, the RO issued a rating decision in June 2011, which, in relevant part, granted service connection for a right shoulder disability and assigned a 10 percent disability rating. The Veteran was sent this rating decision in a June 2011 notification letter and in July 2011 he filed a timely Notice of Disagreement (NOD). In May 2013, the RO issued a Statement of the Case (SOC) for the issue of service connection for an increased rating for his service-connected right shoulder disability. This SOC was initially sent to the incorrect address in May 2013 with a copy to the Veteran’s representative at the time, DAV. DAV noticed the error and notified the VA of the Veteran’s correct address in a letter dated in May 2013. The RO subsequently re-mailed the May 2013 SOC to the correct address in August 2013 and put the notification on the initial SOC. See 05/01/2013, SOC. The Veteran and/or his representative did not file a Form 9 or request an extension of time to file a Form 9 to the May 2013 SOC that was re-mailed in August 2013. Thus, the July 2011 rating decision became final. The Veteran filed a claim for an increased rating for his service-connected right shoulder disability on March 10, 2017. The RO increased the right shoulder disability rating to 30 percent, effective March 10, 2017, in a June 2017 rating decision. After a review of the claims file, the Board finds that an earlier effective date for the increased rating for his service-connected right shoulder disability is not warranted. In this regard, there is no communication prior to March 10, 2017, that could be construed as a claim for an increased rating for the Veteran’s service-connected right shoulder disability. Moreover, the Veteran did not report that his service-connected right shoulder disability worsened until his increased rating claim was received on March 10, 2017, and the record does not establish that it was factually ascertainable that his right shoulder disability increased in severity for the period from March 2016 to March 10, 2017. The Board acknowledges the Veteran’s assertions that he did not receive the May 2013 SOC. However, as discussed in depth above, the correct address was listed on the Statement of the Case (SOC) that was re-mailed in August 2013, which constitutes sufficient evidence of notice. See 38 C.F.R. § 2.406. Accordingly, the June 2011 rating decision that assigned the initial effective date for the grant of service connection for the Veteran’s right shoulder disability was not appealed. His later challenge of this effective date amounts to a freestanding claim. Caselaw makes it clear that there can be no freestanding claim on the question of an effective date. See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). Accordingly, the effective date prior to March 10, 2017, for the award of a 30 percent disability rating for the Veteran’s service-connected right shoulder disability is denied. 7. Entitlement to service connection for an acquired psychiatric disability, to include depressive disorder and PTSD. Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. In the present case, the Veteran has been diagnosed with depressive disorder and PTSD. Thus, present disabilities have been established by the evidence. In an October 2016 statement, the Veteran indicated that he was stationed in New Orleans and was ordered to evacuate in August 2005 due to Hurricane Katrina. He returned to New Orleans after the hurricane to retrieve his belongings and witnessed dead bodies floating and he was informed that six family friends died during the storm. A November 2006 evacuation order indicated that the Veteran led the active duty for special work during the command’s five-month Hurricane Katrina evacuation. The Board finds that the Veteran is competent to describe that he returned home to gather his belongings and witnessed dead bodies after a natural disaster and finds these statements credible. Accordingly, an in-service incurrence has been shown by the evidence. The Veteran submitted a psychological evaluation by K.S., Ph.D., dated in November 2018. Dr. K.S. noted that the Veteran suffered from traumatic experiences during and after Hurricane Katrina. He was evacuated two days prior to Hurricane Katrina and returned a month after the storm to collect his belongings. During his return home, he witnessed three bloated corpses floating in the water and found out that several close friends of his and his family drowned in the storm. Dr. K.S. diagnosed the Veteran with PTSD stemming from this psychological trauma. The Veteran underwent a VA examination in October 2019, at which time he was diagnosed with PTSD. The Veteran reported that he went back to New Orleans after Hurricane Katrina. He indicated that he witnessed dead bodies floating and some of his friends died during Hurricane Katrina. The examiner concluded that this stressor met criterion A and it was at least as likely as not that his PTSD was related to service. The examiner concurred with Dr. K.S.’s report and indicated that his PTSD diagnosis incorporates the diagnosis of mood disorder and adjustment disorder. The Veteran submitted a mental disorders disability benefits questionnaire and medical opinion by E.S., Ph.D., dated in October 2020. Dr. E.S. assessed the Veteran with persistent depressive disorder. The Veteran reported that his depression commenced in service and reported that he started having nightmares and panic attacks after he returned to New Orleans after Hurricane Katrina and witnessed dead bodies and found out friends in the area had died during the storm. Dr. E.S. ultimately concluded that the Veteran’s persistent depressive disorder as likely as not started during service and has continued to the present based on her review of the record and interview of the Veteran. After a review of the record, the Board finds that the evidence it at least in equipoise as to whether the Veteran’s depressive disorder and PTSD are related to service. In this regard, Dr. K.S. and the October 2019 VA examiner both concluded that his PTSD was related to his experiences in service, including his return to New Orleans after Hurricane Katrina and witnessing dead bodies and being notified of his friends passing away in the storm. Moreover, Dr. E.S. concluded that his depressive disorder commenced in service and has continued to the present date. The Board acknowledges the March 2019 examination, which found that the Veteran did not have a mental health diagnosis pursuant to DSM-V. However, as discussed, there is ample evidence, including a subsequent VA examination in October 2019, that indicates the Veteran has been diagnosed with PTSD and depression. In view of the foregoing, and in consideration of the credible medical evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s acquired psychiatric disabilities, including depressive disorder and PTSD, are the result of military service. In cases where the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 8. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). A TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19, 4.25.  Generally, to be eligible for a TDIU, a schedular percentage threshold must be met.  If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling.  If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)).  The Veteran does not have to be 100 percent unemployable in order to be entitled to a TDIU. Roberson v. Principi, 251 F. 3d 1378, 1385 (Fed. Cir. 2001).  When there is an approximate balance of positive and negative evidence as to any issue, all reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107.  The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to a service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. Accordingly, the issue of entitlement to a TDIU is before the Board since the Veteran filed his claim for increased ratings in March 2017. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001) (“[O]nce a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider... TDIU.”). From March 2017, the Veteran has a combined rating of 80 percent and is service connected for obstructive sleep apnea with a 50 percent disability rating; right shoulder impingement with labral tear, status post arthroscopic acromioplasty with labral repair with a 30 percent rating; lumbosacral strain with a 20 percent rating; bilateral hearing loss with a 20 percent rating; tinnitus with a 10 percent rating; allergic rhinitis with a noncompensable rating; hypertension with a 10 percent rating granted herein; hemorrhoids with a noncompensable rating; surgical scars over the right shoulder with a noncompensable rating; and, plantar warts of the right foot with a noncompensable rating. Thus, he meets the percentage threshold for entitlement to a TDIU. Moreover, in this decision, entitlement to service connection for an acquired psychiatric disability, to include depression and PTSD, has been granted. The Veteran submitted a VA Form 21-8940 in January 2019. He indicated that he last worked on October 10, 2018, as an Industrial Specialist. He was a high school graduate. A January 2019 request for employment verified that he worked as an Administrative Clerk and Industrial Specialist until a December 2018 termination. His PTSD prevented duties per a psychological evaluation. The Veteran submitted a November 2020 HR Specialist Agency Certification of Reassignment and Accomodation Efforts. The HR specialist indicated that the Veteran’s medical documentation rendered him 100 percent occupational disabled. He was required to drive a light vehicle, his job duties included extended periods of walking, standing, climbing, and bending, and his worked involved complex analysis of equipment. The June 2017 and November 2019 VA examinations indicated that the Veteran’s right shoulder disability impacted his ability to work. He was unable to reach overhead or perform prolonged work at shoulder height and above. The Veteran’s July 2017 VA examination indicated that his hemorrhoids impacted his ability to work and he was unable to tolerate prolonged sitting, walking, and lifting. The Veteran submitted a November 2018 psychological evaluation by K.S., Ph.D. Dr. K.S. concluded that the Veteran’s PTSD renders him 100 percent occupationally disabled due to his inability to regulate his thoughts and emotions. He would have trouble remembering and following complex instructions and would likely have difficulty working effectively with others. The October 2019 VA examiner indicated that his PTSD symptoms included difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a work like setting. The Veteran submitted an opinion by E.S., Ph.D., in October 2020. Dr. Sadler concluded that his symptoms associated with persistent depressive disorder would prevent him from being able to effectively complete work-related tasks given that he could not tolerate workplace stressors and impairments in social relations. The Veteran further submitted an October 2020 statement by M.B., M.D. Dr. M.B. concluded that the combination of pain and limitations caused by his service-connected impairments prevented him from being able to work. After consulting with the Veteran, Dr. M.B. found that the Veteran would be unable to stand for 30 minutes, could walk for 30 minutes, and would only be able to sit for a total of 30 minutes due to his back disability. He was unable to lift more than 10 pounds due to his shoulder and back pain. Due to his pain and sleep apnea, he slept poorly at night and struggled with concentrating and staying awake during the day. Accordingly, due to his physical limitations and fatigue, Dr. M.B. concluded that he was unable to maintain substantial gainful employment due to his service-connected disabilities. Based on the evidence of record, and resolving all doubt in favor of the Veteran, the Board finds that his service-connected disabilities, including right shoulder, hemorrhoids, PTSD, depressive disorder, lumbar spine, and sleep apnea disabilities preclude him from maintaining substantially gainful employment that is consistent with his education and occupational experience. In this regard, the November 2020 HR specialist indicated that the Veteran was required to drive a light vehicle and his position required extended periods of walking, standing, climbing, and bending, and his worked involved complex analysis of equipment. As discussed, the Veteran’s right shoulder disability prevents him from reaching overhead, his hemorrhoids prevent him from prolonged sitting and walking, and his back disability prevents him from walking, standing, or sitting for more than 30 minutes. Moreover, his sleep apnea contributes to his inability to concentrate and daytime fatigue. Lastly, his PTSD and depressive disorder would prevent him from remembering and following complex instructions. Based on the Veteran’s right shoulder, hemorrhoids, PTSD, depressive disorder, lumbar spine, and sleep apnea disabilities, the Board finds that the Veteran is precluded from working as an Industrial Specialist or in a similar work setting. In light of the above evidence, the Board finds that the Veteran is not capable of substantially gainful employment due to his service-connected right shoulder, hemorrhoids, PTSD, depressive disorder, lumbar spine, and sleep apnea disabilities. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for hemorrhoids is remanded. Pursuant to the Board’s remand instructions, a VA examination was performed in October 2019. However, the Board finds that this examination is insufficient to determine the present claim. In this regard, the Veteran indicated that he had hemorrhoidal flares once a month but was currently asymptomatic. However, the examiner did not provide an opinion as to the severity of his service-connected hemorrhoids during a flare. Accordingly, the Board finds that a remand is warranted in order to assess the severity of the Veteran’s service-connected hemorrhoids. 2. Entitlement to service connection for a liver disability is remanded. The Veteran’s treatment records reveal a diagnosis of fatty liver. He submitted a statement in December 2015 and indicated that he was prescribed Lipitor in service and this medication caused his liver disease. Moreover, the November 2018 psychological evaluation by K.S., Ph.D., noted a medical history of fatty liver disease due to previously taking Lipitor. Given that the Veteran may have a present disability related to service, the Board finds that a VA examination is warranted to assess the nature and etiology of any liver disorder. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records from April 2019 to the present. 2. After completion of #1, schedule the Veteran for a VA examination to assess the severity of his service-connected hemorrhoids. The examiner must conduct a review of the claims file, including a copy of the remand, and such review should be noted in the examination report. The examiner should describe the severity of the Veteran’s hemorrhoids, including during a flare. The examiner should note whether the Veteran’s hemorrhoids are large or thrombotic, irreducible, with excessive reductant tissue, evidencing frequent recurrences or with persistent bleeding and with secondary anemia, or with fissures, including during a flare. Note: Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner.   The examiner must provide a comprehensive rationale for each opinion provided.  The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion.     If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training.  As appropriate, the AOJ should conduct additional development or supplement the record.  3. After completion of #1, schedule the Veteran for a VA examination to determine the nature and etiology of any liver disorder. The claims file, including a copy of this remand, must be reviewed by the examiner and such review should be noted in the examination report. The examiner should identify all liver disorders found on examination and identified during the pendency of this claim, including fatty liver disease, and respond to the following: Is it at least as likely as not (probability of at least 50 percent) that the Veteran’s liver disability had its onset in and/or is otherwise etiologically related to his period of active service, including any prescription to Lipitor? The examiner should provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. (Continued on the next page)   If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. (Hurley) Merrick 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.