Citation Nr: 22015938 Decision Date: 03/20/22 Archive Date: 03/20/22 DOCKET NO. 18-03 624 DATE: March 20, 2022 ISSUES 1. Entitlement to a disability rating in excess of 50 percent for service-connected generalized anxiety disorder (GAD). 2. Entitlement to an effective date earlier than September 10, 2015, for the grant of service connection for generalized anxiety disorder (GAD), to include consideration of whether a clear and unmistakable error (CUE) occurred in the prior rating decision from March 1971 which denied entitlement to service connection for a nervous condition. 3. Entitlement to service connection for a bilateral hip disability, to include as due to radiation therapy. ORDER Entitlement to a disability rating in excess of 50 percent for service-connected generalized anxiety disorder (GAD) is denied. Entitlement to an effective date earlier than September 10, 2015, for the grant of service connection for generalized anxiety disorder (GAD), to include consideration of whether a clear and unmistakable error (CUE) occurred in the prior rating decision from March 1971 which denied entitlement to service connection for a nervous condition is denied. REMANDED Entitlement to service connection for a bilateral hip disability, to include as due to radiation therapy is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's service-connected generalized anxiety disorder (GAD) was manifested by symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work like setting; all having the effect of occupational and social impairment, with reduced reliability and productivity. 2. In January 1971, the Veteran filed a claim for entitlement to service connection for a nervous condition. The claim was denied by an unappealed rating decision of March 1971. 3. On September 10, 2015, the Veteran submitted a request to reopen his claim for entitlement to service connection for generalized anxiety disorder (GAD). 4. It is not clear and unmistakable that the correct facts were not before the rating panel in March 1971 or that the rating decision contains an undebatable error that would have manifestly changed the outcome of the decision at that time with regard to the denial of entitlement to service connection for GAD. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for service-connected generalized anxiety disorder (GAD) have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9400. 2. The criteria for entitlement to an effective date earlier than September 10, 2015, for the award of service connection for GAD have not been met. 38 U.S.C. §§ 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.400(q), (r). 3. The March 1971 rating decision denying service connection for a nervous condition was not clearly erroneous. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.105 (a), 20.1403. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from February 1969 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran claimed entitlement to service connection for a nervous condition, which was originally denied in March 1971. He did not file a timely Notice of Disagreement (NOD), and the decision became final. The Veteran then filed a claim for entitlement to service connection for anxiety and bilateral hip injuries "secondary to radiation treatment," in September 2015. A rating decision from November 2016 granted entitlement to service connection for generalized anxiety disorder at a 50 percent disability rating, effective September 10, 2015. That same rating decision denied entitlement to compensation under 38 U.S.C. § 1151 for bilateral hip degenerative arthritis (a bilateral hip disability). The Veteran filed a timely NOD in November 2017, appealing the disability rating and the effective date for the award of his service-connected GAD, and the denied service connection claim for his bilateral hip disability. In the Veteran's NOD, he also indicated that the original denial of entitlement to service connection for his "nervous disorder" should be January 1971, and that that rating decision should be reversed on the grounds of clear and unmistakable error (CUE). Furthermore, the Veteran wrote that he was not claiming that he is entitled to compensation under 38 U.S.C. § 1151, but instead that his claim was based on secondary service connection, i.e., that the radiation treatment for his service-connected prostate cancer caused him bilateral hip pain. The Veteran was issued a statement of the case (SOC) in November 2017. The Board notes that the SOC again framed the bilateral hip service connection claim as a claim for compensation under 38 U.S.C. § 1151. The Veteran filed a timely VA Form 9 and requested a Board hearing before a Veterans Law Judge. Those claims were eventually certified to the Board. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in July 2021 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. During the Veteran's hearing, the Veteran presented testimony that he believes he is entitled to an earlier effective date for the grant of service connection for GAD, and that the March 1971 rating decision which originally denied entitlement to service connection for a nervous condition should be reversed on grounds of CUE. As such, despite the RO listing the Veteran's claim as only whether an earlier effective date is warranted, the Board has expanded the claim to include consideration of whether the March 1971 rating decision, which denied entitlement to service connection for an anxiety disorder, should be reversed on grounds of CUE. This change has been reflected on the title page. Furthermore, during the Veteran's hearing he also clarified that he was not claiming that he was entitled to compensation under 38 U.S.C. § 1151 due to alleged VA negligence in the radiation treatment for his service-connected prostate cancer. Instead, the Veteran clarified that he experienced bilateral hip pain following that radiation treatment, so his claim was instead one of entitlement to service connection on a secondary basis. This clarification also been reflected on the title page. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). Most recently, in September 2021, the Board remanded this matter for further development and adjudication. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). 1. Entitlement to a disability rating in excess of 50 percent for service-connected generalized anxiety disorder (GAD). The Veteran has claimed that he is entitled to a higher disability rating for his service-connected GAD. During the Veteran's Board hearing before the undersigned in July 2021, the Veteran did not describe specific symptoms, but he did state that he believes the current severity was "only getting worse." In his VA Form 9 from January 2018, he wrote that he continues to deal with anxiety issues. The Veteran is competent to report that which he experiences, to include symptoms associated with his service-connected GAD. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's service-connected GAD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9400, which is part of the General Formula for Mental Disorders (General Formula). Under that formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). In relevant part, a 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. Id. The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 11617 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. Turning to the available medical evidence, the Veteran was given a VA examination in October 2016. He was seen in person, and his claims file was reviewed. The examiner diagnosed the Veteran with GAD and summarized the Veteran's occupational and social impairment as having an occasional decrease in work efficiency. The examiner noted the Veteran's lay statements, including that his wife had passed away in 2015, and that he did not have children. The Veteran stated that he "has some friends and they socialize," but that "he does not have any hobbies." The Veteran described stress and anxiety surrounding his diagnosis of prostate cancer. The examiner noted symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, flattened affect, and disturbances of motivation and mood. The Veteran was noted to be oriented to person, place, and time, with no symptoms of instability or delusional beliefs. The Veteran was noted to be soft spoken, but that he did not elaborate with his responses. Following the Board remand in September 2021, the Veteran was given a VA examination in November 2021. The Veteran was seen in person, and his claims file was reviewed. The examiner confirmed the diagnosis of GAD. The examiner summarized the Veteran's occupational and social impairment as having reduced reliability and productivity. The examiner noted the Veteran's lay statements, and conducted a clinical interview regarding the Veteran's legal, behavioral, and substance abuse history, among other topics. The Veteran was noted to have symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work like setting. The Veteran was noted to have adequate hygiene, and be cooperative, with appropriate eye contact. His mood was "mildly anxious," but his overall memory, cognition insight and awareness appeared intact. The Veteran was noted to be oriented to all spheres to include person, place, time, and situation. The Veteran's VAMC treatment notes include isolated reports of depression and/or anxiety. See September 2019 VAMC treatment note. He consistently denies suicidal or homicidal thoughts and/or tendencies. See November 2021 VAMC nursing note. Generally, VAMC therapy sessions indicate that the Veteran has adequate grooming, and that he is oriented to the correct time and place, with no delusions or hallucinations. The Veteran is noted to take medication for his anxiety disorder. There is no evidence that either the VA examiners, or the VAMC counselors were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran's PTSD. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the current severity of the Veteran's service-connected GAD more nearly approximates the 50 percent disability rating. The Veteran has submitted competent statements, including in his VA Form 9, that he deals with symptoms of anxiety. He was given two VA examinations during the course of the appeal. The first examiner from October 2016 summarized the Veteran's occupational and social impairment as having an occasional decrease in work efficiency, which the Board recognizes as matching the 30 percent disability rating. The Veteran's lay statements included anxiety and depression at the loss of losing his spouse in 2015, and that he did not have any hobbies. The more recent VA examiner from September 2021 summarized the Veteran's occupational and social impairment as having reduced reliability and productivity, which the Board observes as matching the language for a 50 percent disability rating. He was described across both examiners as having symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work like setting. The Veteran was noted to have some friends who he socializes with occasionally. He was also noted to maintain adequate hygiene, be oriented to person, place, and time, be cooperative, and have intact memory, cognition, and insight. He routinely denies suicidal and homicidal ideation during VAMC treatment sessions, in addition to delusions and hallucinations. The Board notes that these symptoms, when viewed collectively, generally indicate that the current severity of the Veteran's PTSD more nearly approximates the 50 percent disability rating. At no point has the Veteran demonstrated the requisite symptomatology during this period on appeal for the 70 percent rating. There is no indication that he experiences obsessional rituals; intermittently illogical, obscure, or irrelevant speech, spatial disorientation; a neglect of personal appearance and hygiene; and/or an inability to establish and maintain effective relationships. He has never been described as having suicidal ideation, nor does he have unprovoked irritability with periods of violence, as reflected by the 70 percent disability rating. Thus, for the entire period on appeal, this symptomatology more nearly approximates the current 50 percent disability rating, and that the evidence persuasively stands against a finding that the Veteran's symptomatology is of the severity and frequency to cause the level of occupational and social impairment associated with a 70 percent disability evaluation. The 50 percent rating best summarizes the Veteran's occupational and social impairment as manifested by reduced reliability and productivity. See Bankhead v. Shulkin, No. 15-2404, slip op. at 10 (U.S. Vet. App. Mar. 27, 2017); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). DC 9411. As such, based on the Veteran's overall symptomatology and the resulting occupational and social impairment stemming therefrom, the Board finds that the evidence in favor of the claim is not in approximate balance or nearly equal to the evidence that supports the claim, and thus entitlement to a disability rating in excess of 50 percent for service-connected GAD must be denied. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9400. 2. Entitlement to an effective date earlier than September 10, 2015, for the grant of service connection for generalized anxiety disorder (GAD), to include consideration of whether a clear and unmistakable error (CUE) occurred in the prior rating decision from March 1971 which denied entitlement to service connection for a nervous condition. As noted above, the Veteran's claim for entitlement to an earlier effective date has been expanded to include consideration of whether a clear and unmistakable error (CUE) occurred in the March 1971 rating decision which denied entitlement to service connection for an anxiety disorder. As an initial matter, the Board remanded this issue in September 2021, as the RO had not adjudicated the interwoven CUE claim in the first instance. See Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002); Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). In an SSOC from February 2022, the RO continued to deny the Veteran's claim for entitlement to an earlier effective date, as well as the interwoven CUE claim. Thus, the RO has had a chance to adjudicate the claim in the first instance, and the Board may now proceed to the merits of the Veteran's claim. The Veteran has claimed that he is entitled to an earlier effective date for the grant of service connection for GAD. The law provides that, unless Chapter 38 of the United States Code specifically provides otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation shall not be earlier than the date of receipt of the claim. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(2), (r). A "claim" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1 (p). "Date of receipt" of a claim, information, or evidence, means the date on which a claim, information, or evidence was received by VA. See 38 C.F.R. § 3.1 (r). By way of background, the Veteran filed an application for entitlement to service connection for a "nervous condition," which was received by VA in January 1971. The Veteran was denied by a rating decision in March 1971. He did not file a timely Notice of Disagreement (NOD), and the decision became final. He subsequently filed another claim for entitlement to service connection for "anxiety," which VA received on September 10, 2015. The Veteran was issued a rating decision in November 2016 that granted entitlement to service connection for GAD at 50 percent disabling, effective September 10, 2015. He filed a timely NOD in November 2017, arguing that his effective date for my anxiety disorder is January 1971 when I filed a claim for a nervous disorder. It was denied due to no evidence in the record. That is clear and unmistakable error. I was treated for a nervous disorder in August 1970; it is in my service treatment records. I should have been service connected then. The Veteran's claim was eventually certified to the Board, where his current disability rating and the effective date are now on appeal. The effective date of an award based on a claim reopened after final adjudication shall not be earlier than the date of receipt of the claim. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(2), (r). Because the Veteran's claim to reopen the final March 1971 rating decision was received on September 10, 2015, the assignment of an effective date for the Veteran's service-connected disability earlier than September 10, 2015, is precluded. Absent a showing of clear and unmistakable error (CUE) in an earlier decision (addressed herein below) the Veteran cannot receive disability payments for a time-frame earlier than the application date of his claim to reopen. See Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005). As such, the Board's analysis must then turn to whether or not a CUE occurred in the March 1971 rating decision. Final and binding VA determinations will be accepted as correct in the absence of CUE. See 38 C.F.R. § 3.105 (a). A final decision that establishes an effective date for service connection can be revised only if the decision is shown to contain clear and unmistakable error. See Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed.Cir.2000). CUE occurs when: (1) either the correct facts, as they were known at the time, were not before the adjudicator, or the statutory or regulatory provisions extant at the time were incorrectly applied, and (2) the outcome would have been manifestly different if the error had not been made. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994). A determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Subsequently developed evidence may not be considered in determining whether an error took place in a prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999); King v. Shinseki, 26 Vet. App. 433, 441 (2014). CUE consists of "errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." See Russell v. Principi, 3 Vet. App. at 313. Clear and unmistakable error is not the mere misinterpretation of facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991); Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Examples of situations that are not CUE are: (1) a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; (2) a failure to fulfill VA's duty to assist a claimant with the development of facts relevant to his or her claim; or (3) a disagreement as to how the facts were weighed or evaluated. See 38 C.F.R. § 20.1403. To begin, the Veteran has alleged CUE with the requisite specificity. See 38 C.F.R. § 20.1404 (b). He has claimed that he had a diagnosis of a nervous condition at the time of the March 1971 rating decision, so therefore that decision denying that his condition was due to service was inaccurate. See NOD; see further July 2021 Hearing Transcript. The rating decision from March 1971 states that the Veteran's induction and discharge exams are essentially negative. There is no record of a diagnosis or treatment for a nervous condition ... in service. Nervous condition claimed by Veteran not shown by the evidence of record. The Veteran's claims file also contains a record from "Medical Associates" of New Orleans, LA. The record was received by VA March 12, 1973, and it notes that the Veteran was first diagnosed with "anxiety state mild" on January 4, 1972. There is no evidence within the Veteran's claims file prior to that point that he was diagnosed with a nervous condition. The Board also notes that the available evidence does not contain an etiological statement, purporting to link the Veteran's nervous condition to his active-duty service. In consideration of the above, the Board finds that a CUE has not occurred. To begin, the Veteran's claim was denied in a March 1971 rating decision, in part because there was no diagnosis of a nervous condition while the Veteran was in service. The first record of his being diagnosed with a nervous condition was after the rating decision. The record from Medical Associates notes he was diagnosed in January 1972. Furthermore, that record was not received by VA until March 1973, two years after the rating decision was made. Again, subsequently developed evidence may not be considered in determining whether an error took place in a prior decision. See Porter, Id. The Veteran claims that he had a current diagnosis that was present while in service, and that the rating agency essentially misinterpreted his service treatment records. Importantly however, clear and unmistakable error is not the mere misinterpretation of facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). Finally, the Board also notes that a finding of CUE requires that the outcome would have been manifestly different if the error had not been made. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994). Again, at best, the evidence that the Veteran points to only identifies a diagnosis, however it does not contain an etiological opinion. There is no other evidence that the Veteran has pointed to, nor within the claims file, that contains an etiological opinion or other legitimate nexus mechanism that was available at the time of the March 1971 rating decision. Thus, even accepting the Veteran's argument that he had a positive diagnosis prior to March 1971 that should have been weighed more favorably, the outcome would not have been manifestly different if the error had not been made, as there was still no positive etiological opinion or other legitimate nexus mechanism within the Veteran's claims file. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994). Therefore, the Veteran's claim that the RO committing CUE in the March 1971 rating decision must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, and not the evidence, is dispositive, the claim should be denied, or the appeal terminated because of the absence of legal merit or the lack of entitlement under the law). Thus, the Veteran's claim of entitlement to an effective date earlier than September 10, 2015, for the grant of service connection for GAD, is denied, as is his claim that the RO committee CUE in their March 1971 rating decision. The grant of service connection for GAD is effective September 10, 2015, as that is the date of receipt of the request to reopen the previously denied claim. In reaching these conclusions, the Board finds that the evidence persuasively stands against finding in favor of the claim in that it is not in approximate balance or nearly equal to the evidence that supports the claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. 1. Entitlement to service connection for a bilateral hip disability, to include as due to radiation therapy is remanded. The Veteran has claimed that he is entitled to service connection for pain in his bilateral hips, which is secondary to radiation treatment that he received for his service-connected prostate cancer. See July 2021 Board Hearing. The Board notes that this is essentially a claim to secondary service connection. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. § § 3.303(a). Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service-connected disability is either proximately due to or the result of a service-connected disability or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). As noted above, the Board previously remanded this matter in September 2021. Specifically, the Board found that the Veteran had not been scheduled for a VA examination, and an etiological opinion had not been rendered regarding his claim for secondary service connection. That VA examination was given in January 2022. The Veteran was seen in person, and his claims file was reviewed. The examiner confirmed that the Veteran had a current diagnosis of degenerative arthritis of the bilateral hips. They then opined that it was less likely than not that the Veteran's bilateral hip disability was due to his prostate cancer. The examiner noted a number of medical entries in the Veteran's VAMC treatment records which discussed complaints of bilateral hip pain, which took place prior to the Veteran's radiation therapy for his service-connected prostate cancer. They then checked a box on the report, indicating that the bilateral hip disability was also not aggravated. A full opinion on aggravation was not rendered, and no rationale was given. Importantly, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). While the Board is not making a finding that the January 2022 VA examination is inadequate, it does find that an addendum opinion is necessary. The Veteran indicated through his testimony that his bilateral hip pain may have been aggravated by the radiation therapy, and the January 2022 examiner did not discuss aggravation. Again, no opinion or rationale were provided. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The RO is asked to forward the Veteran's claims file, to include a copy of this remand to the same examiner who conducted the January 2022 VA examination, so that an addendum opinion on possible aggravation may be given. The matters are REMANDED for the following action: 1. Obtain any outstanding and ongoing VA treatment records. Associate such records with the claims file. 2. Forward the Veteran's claims file to the same examiner who conducted the January 2022 VA examination for an addendum opinion (or a comparable examiner if not available) regarding the nature and etiology of the Veteran's bilateral hip disability. After a review of the Veteran's claims file, to include a copy of this remand, the examiner is asked to provide an addendum opinion which addresses the following: (a.) whether it is at least as likely as not that the bilateral hip disability is either (1) proximately due to radiation therapy stemming from the Veteran's service-connected prostate cancer, or (2) aggravated beyond its natural progression by radiation therapy stemming from the Veteran's service-connected prostate cancer. The examiner is reminded than an opinion on possible aggravation, to include a full rationale, is required. Even if the examiner is unable to determine a baseline severity prior to the aggravation, the examiner is directed to the language of 38 C.F.R. § 3.310 (b) which indicates that the baseline can be measured by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. A detailed rationale for the opinions must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. After the development directed above has been completed, and after any additional development deemed necessary, readjudicate the issues on appeal. If a benefit sought on appeal is not granted, the Veteran and his Representative should be furnished a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.