Citation Nr: 21028546 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 14-44 499 DATE: May 11, 2021 ORDER Entitlement to service connection for bilateral hearing loss for accrued benefits purposes is granted. Entitlement to service connection for tinnitus for accrued benefits purposes is granted. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) to include as secondary to service-connected coronary artery disease (CAD) for accrued benefits purposes is denied. Entitlement to service connection for hepatitis C, to include as secondary to service-connected disabilities for accrued benefits purposes is denied. Entitlement to a rating higher than 30 percent for CAD for accrued benefits purposes is denied. Entitlement to a rating higher than 70 percent for depression for accrued benefits purposes is denied. Entitlement to an effective date earlier than March 17, 2011, for the grant of service connection for depression is denied. Entitlement to a total rating based on individual unemployability (TDIU) for accrued benefits purposes is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is reasonably shown to be related to an in-service injury, illness, or event. 2. The Veteran's tinnitus is reasonably shown to be related to an in-service injury, illness, or event. 3. The Veteran's COPD is not shown to be related to an in-service injury, illness, or event or his service-connected CAD. 4. The Veteran's hepatitis C is not shown to be related to an in-service injury, illness, or event; or to a service-connected disability. 5. Prior to the Veteran's death, his CAD has not been productive of more than one episode of congestive heart failure, a workload of 5 METs or less, or left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent. 6. Prior to the Veteran's death, his depression has not resulted in manifestations that more nearly approximate total occupational and social impairment. 7. The Veteran submitted his claim for service connection on March 17, 2011 and service connection for depression has been established effective March 17, 2011, which is the earliest effective date possible. 8. Prior to the Veteran's death it was not shown that he was unable to obtain gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss for accrued benefits purposes have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.385. 2. The criteria for service connection for tinnitus for accrued benefits purposes have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309. 3. The criteria for service connection for COPD to include as secondary to service-connected CAD for accrued benefits purposes have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 4. The criteria for service connection for hepatitis C, to include as secondary to service-connected disabilities for accrued benefits purposes have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 5. The criteria for a rating higher than 30 percent for CAD for accrued benefits purposes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.104, Diagnostic Code (Code) 7005. 6. The criteria for a rating higher than 70 percent for depression for accrued benefits purposes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.130, Code 9434. 7. The criteria for an effective date earlier than March 17, 2011, for the grant of service connection for depression have not been met. 38 U.S.C. §§ 5101, 5110, 5111; 38 C.F.R. §§ 3.151, 3.155, 3.400. 8. The criteria for a TDIU for accrued benefits purposes have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to October 1970. The Veteran had additional service from October 1970 to August 1971, with a character of discharge that bars the receipt of VA benefits for this period. The Veteran died in March 2016, and the Veteran's surviving spouse has been substituted as the Appellant. This appeal came before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In an October 2018 decision, the Board previously denied the issues of bilateral hearing loss and tinnitus. The Board found that a timely substantive appeal had not been filed and subsequently dismissed the issues pertaining to increased ratings for depression and CAD, an earlier effective date for the grant of service connection for depression, and entitlement to a TDIU. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). The Board also remanded issues, to include service connection for COPD and hepatitis C. Notably, service connection for COPD and hepatitis C were remanded again in July 2020 for further development. In a June 2020 Memorandum Decision, the Court set aside and remanded the Board's decision for additional consideration. Indeed, relevant to bilateral hearing loss and tinnitus, the Court found that the Board failed to consider the Veteran's report to the audiologist that his tinnitus began with gradual onset 45 years prior (i.e., in 1968 during service). Also, that the Board failed to consider the Veteran's October 2011 and June 2013 statements regarding long-standing hearing loss. The Court indicated that as the Board failed to consider this potentially favorable evidence, the failure renders inadequate its reasons or bases for denying service connection for hearing loss and tinnitus. Relevant to the dismissed issues, the Court found that the Board's discussion of the presumption of regularity was incomplete, as the Board's finding that the presumption of regularity applied did not address the appellant's February 2017 status inquiry, which is potential evidence of irregular mailing during the 60-day period following the purported issuance of the statement of the case (SOC). Upon review, the Board notes a February 2017 correspondence from the appellant and her attorney inquiring about the status of her claim as well as a request for documents recently added to the file. Following the inquiry and the privacy request, the RO sent a copy of the January 2017 SOC to the appellant and her attorney which was received in March 2017. Subsequently, the attorney submitted a substantive appeal in April 2017. The Board finds a timely appeal was submitted and will adjudicate these claims below. Finally, the Court noted that the January 2017 SOC did not address the issue of entitlement to an effective date prior to February 24, 2011, for the award of service connection for CAD, an issue encompassed by the Veteran's April 2015 notice of disagreement (NOD). On remand, the Court found that the Board must consider whether remand is required for the RO to issue an SOC on CAD effective date issue. The Board finds that remand is not necessary for this issue, because an October 2017 rating decision adjudicated this issue and assigned an effective date of August 31, 2010 for the grant of service connection for CAD. Neither the appellant nor her attorney has disagreed with this new effective date. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may be granted based on evidence of (1) a current 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. 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may alternatively be granted on a secondary basis for disability that is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (enbanc); 38 C.F.R. § 3.310. For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski,1 Vet. App. 49, 53(1990). 1. Entitlement to service connection for bilateral hearing loss for accrued benefits purposes 2. Entitlement to service connection for tinnitus for accrued benefits purposes The Veteran seeks service connection for bilateral hearing loss that incurred, he asserts, because of his exposure to excessive levels of noise during his time in service. The Veteran was stationed in Korea at the Demilitarized Military Zone (DMZ) and the Board finds it probable he was exposed to hazardous noise exposure. A May 2013 VA examination confirmed hearing loss, which was disabling for VA purposes, indicating that the Veteran has "Bilateral Moderate Severe SNHL [sensorineural hearing loss] above 1K Hz." 38 C.F.R. § 3.385. Tinnitus was also diagnosed. Thus, the current disability requirement is satisfied. Regarding the in-service requirement, as previously stated, the Board finds that the Veteran was exposed to the levels of noise in service he described. Thus, the in-service occurrence or injury requirement is likewise satisfied. Turning to the final question of whether a causal relationship exists between the bilateral hearing loss and tinnitus disability and service, the opinion provided in the May 2013 VA examination is inadequate regarding bilateral hearing loss and tinnitus because it appears to rest on the fact that the Veteran had normal hearing on separation from service, and no in-service tinnitus complaints. The fact that neither hearing loss or tinnitus was not identified during service is not fatal to a claim for service connection. Further, the examiner did not appear to consider the Veteran's report of continuous hearing loss symptomatology, or the fact that he reported tinnitus began 45 years prior to the May 2013 examination, which would indicate that tinnitus started in 1968 while he was still on active duty. For these reasons, the Board affords it no probative weight. See McCray v. Wilkie, 31 Vet. App. 243 (2019). A veteran may establish direct service connection for a hearing loss disability, which initially manifested several years after separation from service, by showing evidence of a current hearing loss disability and a causal relationship to active duty service. See Hensley v. Brown, 5 Vet. App. 155 (1993); see also 38 C.F.R. § 3.303(d). Therefore, a showing of normal hearing at the last noted in-service audiogram is not sufficient to provide the sole basis for a denial of a claim for service connection for bilateral hearing loss and tinnitus absent any other rationale. Prior to his death, the Veteran indicated that he had had difficulty with his hearing and ringing in his ears since his time in service. The Board finds no reason to doubt his assertions. He was competent to report difficulty with his hearing as well as ringing in his ears. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. When the evidence for and against the claim is in relative equipoise, the Board must resolve all reasonable doubt in favor of the Veteran. 3. Entitlement to service connection for COPD to include as secondary to service-connected CAD for accrued benefits purposes The Veteran contends that his COPD is the result of his service-connected CAD. Prior to the Veteran's death, VA treatment notes show the Veteran had a diagnosis of COPD. The question is whether or not the Veteran's COPD was due to service or his service-connected CAD. The service treatment records (STRs) show no complaints of or treatment for COPD. During February 2019 examination, the examiner indicated that COPD is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. COPD was diagnosed at some point between 2008 and 2011 as his medical records from 2008 show no medications for or diagnosis of COPD, but his September 27, 2011 hospital admission showed diagnosis of COPD and pulmonary medications listed. Numerous times in his medical records it is mentioned he is a habitual tobacco smoker, and multiple times he is urged to quit. The Veteran's COPD has been attributed to tobacco smoking, as no other cause has been found. The examiner indicated that habitual tobacco smoking is the most likely cause of his COPD. There is no history of COPD or other respiratory symptoms or disorders or treatment for COPD in the Veteran's STRs, and COPD has not been established to be caused by or an accepted presumptive disease associated with Agent Orange/herbicide exposure. In July 2020, the appellant's attorney submitted an on-line article that addresses COPD exacerbations tied to increased risks for patients who also have CAD. In an August 2020 VA addendum opinion, the examiner indicated COPD is a common, preventable, and treatable disease that is characterized by persistent respiratory symptoms and airflow limitation that is due to airway and/or alveolar abnormalities usually caused by significant exposure to noxious particles or gases. The chronic airflow limitation that characterizes COPD is caused by a mixture of small airways disease (e.g., obstructive bronchiolitis) and parenchymal destruction (emphysema), the relative contributions of which vary from person to person. Chronic inflammation causes structural changes, small airways narrowing, and destruction of lung parenchyma. A loss of small airways may contribute to airflow limitation and mucociliary dysfunction, a characteristic feature of the disease." Medical literature is quite clear with the risk factors and causes of COPD. The examiner indicated that COPD is not caused by CAD as medical literature is quite clear on this matter. This is not a blatant error, as exacerbation and causation are totally distinct in meaning. Review of Veteran's STRs reveal that he was a habitual smoker as medical literature does indicate smoking as the single most important risk factor for the development of COPD. The amount and duration of smoking contribute to disease severity. A lot of his worsening of disease processes were due to noncompliance. The examiner indicated that once again based upon review of Veteran's STRs there is no indication that his COPD has a nexus to his time on active duty as there was no symptomatology, diagnosis or treatment which was found. Further review of records indicates he was diagnosed with COPD in 2010 while being followed by Temple VA. Review found information taken from medical encounter dated in September 2014, the Veteran was seen at Audie Murphy VA Hospital and note indicated he was a 60 pack/year smoker but was down to one-half PPD even at that time. Review of medical notes indicated he was very non-compliant with medications and treatments along with refusal to quit smoking. Therefore, the claimed condition of COPD was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Relevant to secondary service connection, the examiner indicated that Veteran's service-connected conditions include end stage renal disease, unspecified depressive disorder, coronary artery disease status post myocardial infarction and hypertension. Medical literature indicates that CAD and COPD frequently coexist, and the presence of one can affect the outcomes in the other. However, as previously stated, CAD does not cause COPD. Therefore, the claimed condition of COPD is less likely than not proximately secondary to any of his service-connected conditions to include treatment and medications thereof. The examiner also indicated that medical literature does support CAD and COPD often coexist and the presence of one can affect the outcome in the other, therefore aggravation is possible. In this case, the examiner found that it is at least as likely as not that the Veteran's service-connected CAD was aggravated by the condition of COPD. The February 2019 and August 2020 examiner reached negative conclusions as to all of the above. In other words, the Veteran's COPD is not attributable to service in any of the above articulated theories. Ultimately, the examiner concluded that (1a) COPD is not listed among diseases that can be presumptively linked to herbicide agent exposure, see cf. 38 C.F.R. § 3.309, there is no other competent evidence to link COPD to the Veteran's active duty, and (2 and 3) there is no medical literature supporting any theory that COPD might be secondary to either CAD, or any such medication to treat the disorder. The Board observes that the examiner indicated in his August 2020 addendum that the COPD and CAD can coexist as per the medical literature; however, he indicated that CAD (that is already service-connected) is more likely to be aggravated by COPD. Rather, the examiner concluded that the Veteran's COPD was at least 50 percent likely due to a 60-pack year history of smoking cigarettes, that tobacco smoking was the leading cause of COPD worldwide, that cigarette smoke contains harmful toxins that affect lung functionality, toxins that are inhaled directly into the lungs over prolonged periods of time can lead to severe lung irritation and triggering the onset of COPD. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Ultimately, there is no positive nexus opinion of record with which the Board could weigh against the above negative opinion. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). See also Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995) (When faced with conflicting medical opinions, the Board may favor one medical opinion over the other). Importantly, for claims received after June 9, 1998, service connection is precluded for any disability related to chronic tobacco use, even if the tobacco use occurred during service. 38 U.S.C. § 1103; 38 C.F.R. § 3.300. Service connection for a disease resulting from tobacco use is not precluded, however, where the disability resulted from a disease or injury that is otherwise shown to have been incurred or aggravated during service. 38 C.F.R. § 3.300(b)(1). Here, the Veteran's claim was received in March 2011; as such, service connection is precluded for COPD, as the preponderance of evidence indicates the Veteran's current disorder is likely due to smoking. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Finally, the Board notes that the appellant's attorney has indicated in various correspondence that the opinions are not adequate because the examiner is a physician's assistant. To the extent that the attorney contends the clinician who provided the VA examination and opinions is unqualified to provide an examination, the Board finds there is no evidence that the medical officer is not competent or qualified to render a medical opinion in this case. The clinician is a trained and certified physician's assistant and is therefore able to provide competent medical evidence. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). 4. Entitlement to service connection for hepatitis C, to include as secondary to service-connected disabilities for accrued benefits purposes Prior to his death, the Veteran asserted that his hepatitis C was either due to service or secondary to service-connected disabilities. The STRs show no complaints of or treatment for hepatitis C or a liver disability. During February 2019 VA examination, the examiner indicated that hepatitis C was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner indicated that the Veteran's cause of death documents alcoholic cirrhosis of the liver with ascites. On review of the treatment records the Veteran's most recent gastrointestinal/hepatology consultation note dated in February 25, 2016 (1 week prior to his death) documented cirrhosis-decompensated, etiology, hepatitis C/Alcohol. The examiner indicated that the note indicates the hepatology consultants felt the Veteran had developed end stage liver disease (ESLD) from the combination of alcohol usage and his history of hepatitis C disorder. The examiner indicated that it is unclear when or where the Veteran developed hepatitis C although his treatment records document he was diagnosed in December 2010 and that he had elevated liver enzymes on January 31, 2005 when he was seen for his cardiac disorder. The examiner noted that there is no mention as to the cause of the Veteran's elevated enzymes in the treatment records from that evaluation, although his medical records note a history of excessive alcohol intake and that he was taking medications to lower his cholesterol. The examiner noted that per the treatment records the Veteran was treated with 24 weeks of interferon and ribavirin in 2012 and was considered cured with undetectable hepatitis C RNA on September 6, 2013. The examiner also noted that a repeat hepatitis C quantitative RNA on October 9, 2015 was also not detected. The examiner concluded that it is unknown how or where the Veteran contracted his hepatitis C and to suggest a time of where and when he was exposed would be mere speculation. The examiner noted that there is no history of a liver disorder or abnormal liver tests in the STRs or treatment for liver disease in his STRs, and hepatitis C is not caused by or an accepted presumptive disease associated with Agent Orange/herbicide exposure. During August 2020 VA addendum opinion, the examiner noted that seven major genotypes of HCV have been identified. In the past, HCV was responsible for over 90 percent of cases of posttransfusion hepatitis, yet only 4 percent of cases of hepatitis C were attributable to blood transfusions. Over 50 percent of cases are transmitted by injection drug use, and both reinfection and superinfection of HCV are common in people who actively inject drugs. Body piercing, tattoos, and hemodialysis are risk factors. The incubation period for hepatitis C averages 6 to 7 weeks, and clinical illness is often mild, usually asymptomatic, and characterized by waxing and waning aminotransferase elevations and a high rate (greater than 80%) of chronic hepatitis. The examiner indicated that diagnosis of hepatitis C is based on an enzyme immunoassay (EIA) that detects antibodies to HCV. Anti-HCV is not protective, and in patients with acute or chronic hepatitis, its presence in serum generally signifies that HCV is the cause. Patients with chronic HCV infection often have a high symptom burden, but the extent to which HCV infection itself, rather than comorbid conditions, contributes to the symptoms is unclear. The most frequent complaints are fatigue and sleep disturbances; other symptoms include nausea, diarrhea, abdominal pain, anorexia, myalgia, arthralgia, weakness, and weight loss. The examiner noted that review of STRs and other medical documents does not reveal exactly when the Veteran was diagnosed with hepatitis C, however most likely between 2005 and 2010. Review also reveal that he was treated with at least 24 weeks of Interferon and Ribavirin in 2012 and was considered cured of the disease. Lastly, the examiner found there is no objective clinical evidence which was found during review to suggest a nexus to his time on active duty. Therefore, the claimed condition of hepatitis C is less likely than not etiologically related to his active service. The examiner also found that current medical literature does not support the secondary cause of hepatitis C to conditions of end stage renal disease, unspecified depressive disorder, or coronary artery disease status post myocardial infarction and hypertension. There is also no evidence of aggravation due to the Veteran's service-connected conditions. The examiner concluded that the claimed condition of hepatitis C is less likely than not proximately due to any of the Veteran's service-connected conditions, treatment, and medications thereof, to include no aggravation. The February 2019 and August 2020 VA opinion reports were based on upon thorough review of the record and analysis of the Veteran's entire history. Additionally, the VA examiner's opinions are consistent with the Veteran's documented medical history, which is absent any report of symptomatology consistent with hepatitis C, for many years after active service. Further, the examiner adequately explained why the Veteran's hepatitis C was not caused or aggravated by any service-connected disabilities. The appellant has not submitted a medical opinion to contradict the VA opinions that the Veteran's hepatitis C, was not related to service or a service-connected disability. The appellant has been accorded ample opportunity to present competent medical evidence in support of her claim. The Board acknowledges the statements from the appellant and Veteran (prior to his death) in support of the claim on appeal. To the extent the appellant and Veteran assert the hepatitis C, was related to the Veteran's service or a service-connected disability, they are competent to report that he had diagnoses of these disabilities (as that is documented in the record). They are also competent to report that the Veteran had symptoms since service. However, the hepatitis C, was not noted during service. The Board observes that the appellant and Veteran have reported longstanding symptoms related to the hepatitis C. The Board notes that they are competent to report these symptoms both current and past. However, this lay evidence is inconsistent with the normal findings upon separation from service and no objective report of any hepatitic C for many years following the Veteran's separation from service. Further, the objective findings are more credible and more probative than his after-the-fact lay assertions. The objective findings are far more probative and credible than the lay evidence submitted in support of a claim for benefits. The Board must find that the appellant's and Veteran's statements with regard to a nexus between his hepatitis C and service to be of minimal probative value and outweighed by the VA opinions, prepared by a skilled medical professional. The Board also notes that as discussed above, the appellant and Veteran have indicated that the hepatitis C, was related to the Veteran's service-connected disability and that service connection is warranted on a secondary basis. However, as discussed above, hepatitic C is not shown to be secondary to any of the Veteran's service-connected disabilities. For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the appellant's claim of entitlement to service connection for hepatitis C. The benefit sought on appeal are accordingly denied. Increased Rating Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under the applicable Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 5. Entitlement to a rating higher than 30 percent for CAD for accrued benefits purposes Prior to his death, the Veteran asserted that his service-connected CAD warranted an initial disability rating higher than 30 percent. The claim of entitlement to an initial rating higher than 30 percent for CAD is denied. The Veteran's CAD is rated under Code 7005, which provides for a 10 percent rating when a workload of greater than 7 metabolic equivalents (METs), but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or when continuous medication is required. A 30 percent rating is assigned when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is assigned when there is more than one episode of congestive heart failure within the past year, or where a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent. A 100 percent rating is assigned for chronic congestive heart failure, or where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or where LVEF is less than 30 percent. 38 C.F.R. § 4.104, Code 7005. After review of the record, the Board finds that a higher rating is not warranted. Post-service private treatment records document the Veteran suffered a myocardial infarction in December 2004 and underwent cardiac catherization in March 2005 which revealed evidence of CAD. The records also noted findings of left ventricular hypertrophy. August 2014 VA examination shows CAD. The examiner indicated echocardiogram in 2011 noted evidence of left ventricular hypertrophy. The left ventricular ejection fraction was noted as 60-65 percent. The estimated METs was noted as 1-3 but not due to the Veteran's heart condition. The examiner notes that the Veteran had multiple health problems to include end stage renal disease with dialysis three times a week, COPD and lumbar spine condition which affect the METs and are not service connected. The examiner states the ejection fraction is more indicative of the heart condition than the estimated METs. The above evidence supports continuance of the Veteran's 30 percent rating. Although the Veteran's METs were estimated at 1-3, the examiner specifically indicated that such were not due to the Veteran's CAD. He also been shown to have cardiac hypertrophy or dilatation on echocardiogram and requires the use of continued medication. Additionally, left ventricular dysfunction with an ejection fraction of more than 50 percent was shown. Prior to the Veteran's death, he was not shown to have a left ventricle ejection fraction of less than 50 percent; congestive heart failure during the appellate period; of METs of less than 5 attributed to heart disease. Therefore, a higher rating of 60 percent is not warranted. 38 C.F.R. § 4.104, Code 7005. The Board also finds the examination report to be adequate because it was based on a review of the record and a physical examination and interview with the Veteran. The Veteran did raise any objections to the examination or the resulting report. Further, neither the VA treatment records, nor private treatment records provide evidence of symptoms warranting a rating in excess of 30 percent for the Veteran's CAD prior to his death. Accordingly, the preponderance of the evidence is against finding that a higher rating is warranted. This claim must be denied. 6. Entitlement to a rating higher than 70 percent for depression for accrued benefits purposes Prior to his death, the Veteran asserted that his service-connected depression warranted a higher initial disability rating. Historically, an October 2014 rating decision granted service connection for depression and assigned a 50 percent rating effective from March 17, 2011, the date of the original claim for service connection. The Veteran disagreed with the rating assigned. An October 2017 rating decision assigned a 70 percent rating effective from March 17, 2011. The appellant did not indicate if she was satisfied with the 70 percent rating. As such, this issue remains before the Board. Under the General Rating Formula, a 70 percent rating is warranted where the disorder is manifested by 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 that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Code 9434, General Rating Formula. The maximum 100 percent rating is warranted where the disorder is manifested by 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. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and a veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall 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. In addition, the rating agency will consider the extent of social impairment but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126 (b). Further, ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Considering the pertinent evidence of record in light of the above-cited provisions, the Board finds a rating in excess of 70 percent is not warranted for the Veteran's depression at any point prior to the Veteran's death. Indeed, the Board finds that, collectively, the pertinent evidence, that includes August 2014 VA examination that reflects that throughout the period under consideration, the Veteran's psychiatric symptoms have not been shown to be of the type, extent, frequency or severity as the symptoms expressed in the rating schedule to support a 100 percent evaluation. At no time had the Veteran reported and the record failed to show auditory hallucinations, gross impairment in thought processes or communication, persistent delusions, gross 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-the symptoms listed in the rating criteria as indicative of the level of impairment for which a 100 percent rating is assignable. In addition, the evidence shows that prior to his death in March 2016, the Veteran lived with his wife of 32 years and reported having a close relationship with his wife as well as his children. He also enjoyed fishing with friends. No VA examiner found total occupational and social impairment, and the other evidence of record demonstrates functioning that is better than total occupational and social impairment. In fact, the Veteran has been found to have occupational and social impairment with an occasional decrease, or reduced reliability and productivity and was able to maintain seemingly productive relationships with several family members. Under these circumstances, the Board finds that the Veteran was not shown to have experienced symptoms of the type, extent, and frequency or severity to result in total occupational and social impairment as contemplated by the rating criteria for a 100 percent rating. Again, the evidence of record does not indicate that the Veteran's disability, prior to his death, has more nearly approximated the level of impairment contemplated in the maximum, 100 percent rating. For the foregoing reasons, the Board finds the claim for a rating higher than 70 percent for depression must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against assignment of a higher rating at any pertinent point, that doctrine is not applicable. 7. Entitlement to an effective date earlier than March 17, 2011, for the grant of service connection for depression Generally, the effective date for an award of service connection and disability compensation is the day following separation from active service, or the date entitlement arose if the claim is received within one year after separation from service; otherwise, for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A review of the record shows that the Veteran submitted an initial claim for service connection for depression in March 2011. In connection with the claim, the RO obtained service treatment records showing that the Veteran was treated for his disability during service. By rating decision dated in October 2014, the RO granted service connection for depression, effective March 17, 2011, the day of the original claim for service connection. Although the Veteran reported that he had been experiencing chronic depression prior to the March 17, 2011 effective date, this is insufficient to establish that he is entitled to an earlier effective date under VA's governing laws and regulations. In this regard, the effective date of an award of service connection is assigned not based on the date the Veteran claims the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999). Further, the appellant's attorney has not provided any argument or pointed to any law or regulation that would afford an effective date earlier than the day the Veteran submitted his claim for service connection. In other words, there is no legal basis to award an earlier effective date. As above, the earliest effective date possible is the day the Veteran submitted his original service connection claim. Therefore, based on the above-stated facts and regulations, the Board finds that the legally correct date for the award of service connection for the service-connected depression is March 17, 2011, the day of the original claim for service connection. As such, the appellant is not entitled to an earlier effective date for accrued benefits purposes, and the claim must be denied. 8. Entitlement to a TDIU for accrued benefits purposes TDIU may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated at 60 percent or more; or as a result of two or more service connected disabilities, provided at least one disability is rated at 40 percent or more, and there are additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but, the Veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Although prior to the Veteran's death the evidence shows that the Veteran was unable to maintain gainful employment, the evidence did not reflect that this is due solely to his then current service-connected conditions of heart disease or depressive disorder. Records revealed that the Veteran was on dialysis three times per week for nonservice-connected renal failure and that he also suffered from COPD requiring the use of oxygen and a scooter to help with mobility. It was shown at the time that the conditions constituted for the majority of functional impairment preventing the ability to be employed. The Board observes that a January 2020 rating decision has granted service connection for the Veteran's kidney disease with an evaluation of 100 percent effective July 5, 2013, for accrued purposes only. At the August 2014 VA exam the Veteran reported the last time that he worked was five years prior to the 2014 evaluation when he worked selling RVs. He indicated that he was laid off from that position and was later diagnosed with multiple health problems. The VA examiner stated that the ejection fraction was the best reflection of the impairment from heart disease and the ejection fraction was in the normal range. The examiner indicated the Veteran's heart condition(s) did not impact his or her ability to work. At the mental health examination, the examiner reported that depression would cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. However, there is no indication of total occupational or social impairment. Treatment records submitted in support of the claim do not show entitlement to individual unemployability is warranted based on the claimed service-connected heart and mental disabilities prior to the Veteran's death. (Continued on the next page) The Board finds that the overall evidence of record shows that prior to his death, the Veteran's service-connected disabilities were not so severe as to render the Veteran totally unemployable. The Board is sympathetic to the Veteran's conditions affecting his overall health and well-being. However, the preponderance of the evidence of record is against a finding that he was unable to secure or follow substantially gainful occupation consistent with his education and occupational history as a result of his service-connected disabilities alone. SONJA S. AN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.