Citation Nr: 1736619	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  05-06 791A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Whether new and material evidence has been received to reopen the claim of entitlement to service connection for arthritis of the left hand.

2.  Entitlement to service connection for arthritis of the left hand.

3.  Entitlement to service connection for hypertension.

4.  Entitlement to service connection for hypercholesterolemia (high cholesterol).

5.  Entitlement to service connection for type 2 diabetes mellitus, to include as due to exposure to Agent Orange.

6.  Entitlement to an effective date earlier than April 25, 2002, for the grant of service connection for Posttraumatic Stress Disorder (PTSD).

7.  Entitlement to an initial rating in excess of 30 percent prior to September 6, 2013, for PTSD.

8.  Entitlement to an initial rating in excess of 50 percent from September 6, 2013 for PTSD.

9.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Labi, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1968 to October 1970, to include service in the Republic of Vietnam from April 1969 to April 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2003 and June 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

This case was previously before the Board in April 2009, October 2010, and February 2014.  The issues were the subject of a prior Board decision from April 2009.  A May 2010 United States Court of Appeals for Veterans Claims (Court) Order, implementing a Joint Motion for Remand (JMR), vacated the April 2009 Board decision and returned the issues to the Board.  In October 2010, the Board remanded the matter for additional development consistent with the terms of the May 2010 Court Order.  In February 2014, the Board remanded this claim in order to acquire available records from the Social Security Administration (SSA), obtain any outstanding VA treatment records, and to afford the Veteran a new VA examination for diabetes.

The January 2003 rating decision referred to the issues of PTSD, arthritis, and diabetes.  The June 2004 rating referred to the issues of service connection for high cholesterol and for hypertension.  The TDIU issue is part and parcel to the ratings issues.  

VA received the Veteran's original claim of entitlement to service connection for arthritis of the left hand on February 27, 1985.  In an August 1992 rating decision, the RO denied service connection for arthritis of the left hand.  The Veteran did not timely appeal the August 1992 rating decision, and it became final.  On April 25, 2002, the Veteran filed a new claim of entitlement to service connection for arthritis of the left hand.  In October 2002, the Veteran received notice that he was previously denied service connection for arthritis and that he was notified of that decision in August 1992.  The October 2002 notice provided that the appeal period for the August 1992 decision expired and was final, and that in order to reconsider the issue, new and material evidence was required.  The January 2003 rating decision denied the service connection for arthritis because the RO found that the evidence submitted was not new and material.

In the January 2003 rating decision, the RO granted service connection for PTSD and assigned an effective date of April 25, 2002.  In a December 2013 NOD, the Veteran expressed his disagreement with the effective date awarded for his service connected PTSD.

VA received the Veteran's claim of entitlement to service connection for PTSD on April 25, 2002.  In a January 2003 rating decision, the Veteran was granted service connection for PTSD and received a rating of 30 percent, effective April 25, 2002.  In a November 2013 rating decision, the Veteran was granted a higher rating increased rating of 50 percent for PTSD, effective September 6, 2013.  As this award does not represent the maximum rating available for this disability, the Veteran's increased rating claim remains in appellate status.  See AB v. Brown, 6 Vet. App. 35 (1993).

The previous Board decision in February 2014 found that the issue of entitlement to TDIU was raised by the record.  The RO issued a rating decision in April 2017 denying entitlement to TDIU.  In Rice v Shinseki, 22 Vet App 447 (2009), the Court held that a TDIU claim is part of an increased disability rating claim when such claim is raised by the record.  The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Id.  The issue of entitlement to TDIU is now before the Board.

The Veteran raised a separate claim for service connection for insomnia in an October 2009 statement, and in January 2010 notice was sent to the Veteran notifying him that they were working on his claim for insomnia secondary to PTSD.  In March 2010 a deferred rating decision was issued, noting that the issue of insomnia is part of PTSD, currently on appeal.  The Board considers all psychiatric symptoms to be due to the Veteran's PTSD.


FINDINGS OF FACT

1.  In an August 1992 rating decision, the RO denied the Veteran's claim of entitlement to service connection for arthritis of the left hand; the Veteran did not timely initiate an appeal of that decision within one year of notification.

2.  The evidence received since August 1992 relates to an unestablished fact necessary to substantiate the claim for service connection for arthritis of the left hand and raises a reasonable possibility of substantiating that claim.

3.  The Veteran's arthritis of the left hand did not have onset during his active service, was not caused by his active service, and did not manifest within one year of separation from active service.

4.  The Veteran's hypertension did not have onset during active service, was not caused by his active service, and did not manifest within one year of separation from active service.

5.  The Veteran has never had diabetes mellitus. 

6.  The Veteran does not have a disability manifested by hypercholesterolemia (high cholesterol).

7.  The Veteran first filed a claim of entitlement to service connection for PTSD on April 25, 2002.  

8.  For the period prior to September 6, 2013, the Veteran's service-connected PTSD resulted in no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

10.  For the period from September 6, 2013, the Veteran's service-connected PTSD, resulted in no more than occupational and social impairment with reduced reliability and productivity due to such symptoms 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  

11.  The Veteran's service-connected disability does not prevent him from securing or following a substantially gainful occupation.



CONCLUSIONS OF LAW

1.  The August 1992 rating decision, which denied service connection for arthritis of the left hand is final.  38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2016).

2.  The criteria for reopening a claim of entitlement to service connection for arthritis of the left hand have all been met.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. §3.156(a) (2016).

3.  The criteria for service connection for arthritis of the left hand have not all been met.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016).

4.  The criteria for service connection for hypertension have not all been met.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2016).

5.  The criteria for service connection for diabetes mellitus have not all been met.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2016).

6.  The criteria for service connection for high cholesterol have not all been met.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016).

7. The criteria for an effective date earlier than April 25, 2002, for the grant of service connection for PTSD, are not met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016).

8.  The criteria for a disability rating in excess of 30 percent for PTSD have not been met for the period prior to September 6, 2013.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2016).

9.  The criteria for a disability rating in excess of 50 percent for PTSD have not been met for any period on appeal.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2016).

10.  The criteria for a TDIU have not been met.  38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See generally, 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Pursuant to the Board's February 2014 remand, the Agency of Original Jurisdiction (AOJ) performed additional development, obtained official notice from SSA in March 2016 that there are no medical records available, provided the Veteran with an adequate VA examination in June 2016, and issued a supplemental statement of the case (SSOC) in April 2017.  Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's February 2014 remand.  Stegall v. West, 11 Vet. App. 268 (1998).

II.  New and Material - Claim to reopen

Prior to the filing of the current claim of entitlement to service connection for arthritis of the left hand, the AOJ previously denied a claim of service connection for arthritis of the left hand in August 1992.  The claim was denied at that time primarily because there was no evidence of record providing that the Veteran had a diagnosis of arthritis of his left hand.  Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed.  38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §20.1100 (2016).

Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant's procedural due process and appellate rights.  38 U.S.C.A. § 7105(b)(1) (West 2014); 38 C.F.R. §§ 3.103(b)(1), 19.25, 20.1103 (2016).  An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision.  38 U.S.C.A. § 7105(a) (West 2014); 38 C.F.R. § 20.200 (2003).  An NOD is a statement, reduced to writing, which can reasonably be construed as expressing dissatisfaction with the AOJ's decision and a desire to contest the result. 38 U.S.C.A. § 7105(b); 38 C.F.R. § 20.201 (2003).  Except in the case of simultaneously contested claims (which this is not) the NOD must be filed within one year from the date of mailing of result of the initial determination.  See 38 U.S.C.A. § 7105(b)(1); see also 38 C.F.R. §§ 20.200, 20.201, 20.302 (2003).  If a timely NOD is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C.A. § 7105(c) (West 2014).

If the claimant files a timely NOD and the disagreement is not resolved, the AOJ must provide the claimant and his or her representative, if there is one, with an SOC. 38 U.S.C.A. § 7105(d) (West 2014); 38 C.F.R. § 19.30 (2016).  As a general rule, the appellant must file a substantive appeal within 60 days of the mailing of the SOC or within one year of the notice of the decision being appealed, whichever is later.  38 U.S.C.A. § 7105(d)(1); 38 C.F.R. § 20.302(b) (2016).  A substantive appeal consists of a properly completed VA Form 9 or a correspondence containing the necessary information.  38 C.F.R. § 20.200 (2003).  If a claimant fails to respond after receipt of the SOC, the AOJ may close the case.  38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 19.32 (2014).  Once the AOJ closes the case for failure to complete the appeal to the Board, the AOJ decision is final.  38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103.

The exception to this rule of not reviewing the merits of a finally denied claim is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

The regulation that implements 38 U.S.C.A. § 5108 defines "new and material evidence" as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2016).

New evidence means existing evidence not previously submitted to agency decision makers.  38 C.F.R. § 3.156(a).  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.  Id.  New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim.  Id.

Of note, under 38 C.F.R. § 3.156(b), "new and material" evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending.  See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014).

In determining whether evidence is "new and material," the credibility of the evidence in question must be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Taking into account all relevant evidence, the Board finds that new and material evidence has been submitted sufficient to reopen the Veteran's claim of entitlement to service connection for left hand arthritis.  As noted above, the Veteran was previously denied service connection for arthritis because there was no objective evidence of record, such as findings in x-ray studies, to indicate that the Veteran had arthritis of either hand.  Since that time, the Veteran's VA outpatient treatment records and November 2002 report of VA examination show a diagnosis of arthritis of the left hand.  As there is new evidence of record showing that the Veteran does have a diagnosis of arthritis of the left hand, the Board finds this sufficient evidence to reopen the Veteran's claim.  As such, service connection on a direct basis for arthritis of the left hand must now be considered.


III.  Service Connection

The Veteran contends that he has arthritis of the left hand, diabetes mellitus, high cholesterol, and hypertension, all directly related to service.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110 (West 2014); 38 C.F.R. § 3.303(a) (2014).  "To establish a right to compensation for a present disability, a Veteran must show:  "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain chronic diseases, including hypertension, diabetes mellitus, and arthritis may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service.  High cholesterol is not included.  38 U.S.C.A. §§ 1101, 1112, (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2016).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.  Here, however, the Veteran's hypertension, diabetes mellitus, and arthritis did not manifest until well after service, and there is no indication of these conditions prior to, during, or within one year of service.

For purposes of establishing service connection for a disability resulting from exposure to certain herbicide agents, such as Agent Orange, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service.  38 U.S.C.A. § 1116(f).  The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6).  Moreover, it is provided that the diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(ii).  These diseases include Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes).  Hypertension and arthritis are not included.  38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e).

"Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e).  In Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), the Federal Circuit upheld VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring proof of some duty or visitation onshore in Vietnam.  Here, service records indicate that the Veteran is a combat Veteran who served in the Republic of Vietnam.

A.  Arthritis

The Veteran contends that his arthritis of the left hand is directly related to service.

Outpatient VA treatment records show treatment for arthritis of the left hand.  The November 2002 VA examination also indicates arthritis of the left hand.

Social Security records from January 2004 provide a Social Security decision which mentions that an August 2001 examination diagnosed the Veteran with osteoarthritis and PTSD.  However, in March 2016, Social Security indicated that medical records from them are unavailable, advising that there are no medical records and further efforts to obtain them would be futile.

However, evidence of record does not indicate that the Veteran's diagnosed arthritis of the left hand is connected to service.  The Board notes that the Veteran's service treatment records document that at entrance into service his medical examination was normal for upper extremities and his musculoskeletal system.  In his report of medical history he reported that he had broken his right wrist a year prior.  There are reports of complaints regarding his right hand in December 1968 and January 1969.  A note from July 1970 states that the Veteran was complaining of numbness and pain in his left wrist and forearm, stating that he had broken the same wrist in the past.  The service treatment records also include the report of a left wrist x-ray study performed following complaints of pain of the left wrist.  This indicates that the study was negative.  The Veteran's August 1970 report of VA separation examination did not note any wrist problems.  There is no further evidence of record noting complaints of, or treatment for, left wrist pain until 1985, 15 years after the Veteran's separation from service, when the Veteran reported stiffness and pain in both hands.

While recent treatment records do show mild arthritis of the left hand, no competent evidence has been presented linking this current finding to service.  The evidence of record indicates that the Veteran had complaints of pain of the left wrist during service but shows that he did not have arthritis of the left wrist during service.  

The evidence does not show that arthritis of the left hand or wrist was found within one year of separation from service so presumptive service connection under 38 U.S.C.A. § 1112 is not warranted.  In making this determination, the Board has considered the Veteran's August 1992 statement that, after studying his x-rays a physician informed him during service that he had arthritis.  The Board finds the x-ray report in the record to be more probative than what the Veteran claims to have recalled many years after service because it was created contemporaneous to the event in question.  

The evidence does not indicate a left hand disability until 15 years after his separation from service, and no competent evidence indicates a link between the Veteran's current left hand arthritis and his service.  Although the Veteran has asserted that he believes he has arthritis due to service, whether arthritis had onset many years prior to when it was clinically shown is a complex question that is not subject to lay opinion evidence.  Therefore, the Board finds that the preponderance of the evidence of record is against a grant of service connection for arthritis of the left hand.

B.  Hypertension

The Veteran contends that his claimed hypertension is directly related to service.

VA outpatient treatment records and a November 2002 VA examination report indicate a diagnosis of hypertension.

While evidence of record indicates that the Veteran has a diagnosis for hypertension, there is no evidence of record linking the Veteran's hypertension to service or showing that he had hypertension during service or within one year after separation from service.  STRs indicate no complaints of or treatment for hypertension.  The report of the Veteran's service entrance examination noted a normal blood pressure reading of 128/76.  The Veteran's August 1970 report of separation examination found that the Veteran had a normal blood pressure reading of 108/68.

The evidence of record does not show any confirmed diagnosis of hypertension until a November 2002 report of VA examination, dated over 32 years after the Veteran's separation from service.  The competent evidence of record does not show that the Veteran's diagnosed hypertension is connected to service or to any service-connected disability.

Evidence of record does not indicate that the Veteran had a diagnosis of hypertension in service or for over 30 years after his separation from service.  Medical evidence of record does not indicate a link between the Veteran's hypertension and his service or a service connected disability.  Therefore, the Board finds that the preponderance of the evidence is against a grant of service connection for the Veteran's hypertension.

C.  Diabetes Mellitus

The Veteran contends that he has diabetes mellitus and it should be service connected.  

VA Outpatient treatment records show that test results from May 2002 indicate high blood sugar but do not indicate diabetes mellitus.  The November 2002 VA examination report indicates that the Veteran reported a history of type 2 diabetes mellitus diagnosed in 2002 and that he was on diet control but was not taking any medication for diabetes.  While the examiner lists diabetes as a diagnosis, he did not perform any diagnostic testing to indicate that the Veteran met the criteria for a diagnosis of diabetes.  The Veteran's assertion that he was diagnosed with diabetes in 2002 is not supported by the record.  Therefore, the Board affords this examination low probative value in relation to the given diagnosis for diabetes.

The June 2016 VA examination report indicates that the Veteran's symptoms did not meet the criteria for a diagnosis of diabetes mellitus.  The examiner opined that the claimed condition is less likely than not incurred in or caused by the claimed in-service injury or event.  The examiner stated that although the Veteran reports a diagnosis of diet controlled diabetes along with a tour of active duty in Vietnam with presumed exposure to Agent Orange, a review of the Veteran's glucose and A1C levels from 2002 to the present do not meet diagnostic criteria for a diagnosis of diabetes mellitus, type 2.  The report also indicates that the Veteran has not been treated with any anti-diabetes agents or prescriptions.  The Board affords this examination high probative value in relation to the examiner's assessment of the Veteran's claimed diabetes because it is based on laboratory data as well as the Veteran's medical history.

Taking into account all relevant evidence, the Board finds that service connection is not warranted for diabetes mellitus.  In this regard, the Board finds that the preponderance of the evidence of record shows that the Veteran does not have a current diagnosis of diabetes.  The Veteran's service medical records show no complaints of, or treatment for, diabetes or any blood glucose problems.  A June 2002 report of VA outpatient treatment indicates that the Veteran's glucose was tested, and he was specifically found to not have diabetes.  The Board acknowledges the Veteran's report that he has diabetes.  However, it is well known that diabetes is diagnosed by medical professionals based on laboratory tests.  The Veteran is not shown to have medical expertise and has not demonstrated that he is competent to diagnose diabetes.  Hence, his assertion that he has diabetes is not competent evidence that he has the disease.  

Therefore, the Board finds that the preponderance of the evidence of record indicates that the Veteran does not currently have a diagnosis of diabetes.  Thus, the Board finds that the preponderance of the evidence is against a grant of service connection for diabetes.

D.  Hypercholesterolemia (high cholesterol)

The Veteran contends that his high cholesterol is directly related to service.

As to the Veteran's claim of entitlement to service connection for hypercholesterolemia, high cholesterol is also referred to as hypercholesterolemia or hyperlipidemia.  Hypercholesterolemia and hyperlipidemia are the medical terms for high cholesterol.  Hypercholesterolemia is "excessive cholesterol in the blood." See Dorland's Illustrated Medical Dictionary 887 (32nd ed. 2012).  Hyperlipidemia is "a general term for elevated concentrations of any or all of the lipids in the plasma, including hypertriglyceridemia, hypercholesterolemia, and so on." Id. at 891.  Elevated cholesterol is a laboratory finding and not a disability in and of itself for which VA compensation benefits are payable.  See 61 Fed. Reg. 20440, 20445 (May 7, 1996) (diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities. They are, therefore, not appropriate entities for the rating schedule.).

The term "disability," as used for VA purposes, refers to impairment of earning capacity.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).  There is no evidence of record suggesting the appellant's elevated cholesterol causes any impairment of earning capacity.  The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Service connection can only be granted for a disability resulting from disease or injury. See 38 U.S.C.A. §§ 1110, 113. High cholesterol is a laboratory finding that manifests itself only in laboratory test results and is not a disability for which service connection can be granted. As such, service connection for high cholesterol is not warranted. In sum, the evidence demonstrates that the appellant is not entitled to service connection for high cholesterol. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board concludes that although chronic high cholesterol may be present, the record does not contain competent evidence of a disability from high cholesterol.  In the absence of proof of a current disability from high cholesterol, service connection for high cholesterol is not warranted.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 43-144 (1992).

As to all the Veteran's service connection claims, the Board notes that the Veteran has submitted treatises related to diabetes mellitus and other disabilities, in support of his claims.  Medical treatise evidence can, in some circumstances, constitute competent medical evidence.  See 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses).  However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim.  See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996).  Here, the treatise evidence which has been submitted by the Veteran, through his representative, is general in nature and does not specifically relate to the facts and circumstances surrounding his particular case.  As such, the Board finds it of limited probative value.

As the preponderance of the evidence is against all of these claims for service connection, the benefit-of-the-doubt doctrine does not apply, and the claims must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990).


IV.  Effective Date

The Veteran contends that an earlier effective date is warranted for his service-connected PTSD.  The Board notes that the Veteran's current effective date, April 25, 2002, is the date of the Veteran's original claim for service connection for PTSD.  The Veteran does not contend that he filed a claim for PTSD earlier than that date.

In general, the effective date of an award based on an original claim, or a claim reopened after final adjudication, of entitlement to disability compensation is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. §  3.400.  

In this case, the evidence does not show that the Veteran filed a claim earlier than April 25, 2002.  

As there is no evidence that the Veteran filed a claim for PTSD any earlier than April 25, 2002, the Board finds that the preponderance of the evidence of record is against a grant of an earlier effective date for the grant of the Veteran's service-connected PTSD.  Thus, an effective date earlier than the current effective date, April 25, 2002, is not warranted.




V.  Psychiatric Disability Rating

The Veteran contends that his PTSD meets the criteria for a rating higher than 30 percent prior to September 6, 2013 and a rating higher than 50 percent from September 6, 2013.

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability.  38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  It is not expected that all cases will show all of the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.

In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).

PTSD is evaluated under the General Rating Formula for Mental Disorders.  38 C.F.R. § 4.130.  An evaluation of 30 percent is warranted for PTSD with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).  

A 30 percent evaluation is warranted for PTSD manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).  38 C.F.R. § 4.130

An evaluation of 50 percent is warranted for PTSD with occupational and social impairment with reduced reliability and productivity due to such symptoms 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; difficulty in establishing and maintaining effective work and social relationships.  See Id.

A 70 percent evaluation is warranted for PTSD with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; 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); inability to establish and maintain effective relationships.  See Id.

A 100 percent evaluation is warranted for PTSD with total occupational and social impairment, due to symptoms such as the following: 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.  See Id.

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).  A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013).  Other language in Vazquez-Claudio indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating.  Id. at 116.

If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned.  Mauerhan, 16 Vet. App. at 443.  In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission.  38 C.F.R. § 4.126.  While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment.  Id.

For purposes of considering the evidence in connection with the PTSD issue, the Board notes that the Global Assessment of Functioning (GAF) scale is a scale from 0 to 100, reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness."  Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) ("DSM-IV") (100 representing superior functioning in a wide range of activities and no psychiatric symptoms).  See 38 C.F.R. §§ 4.125, 4.126, 4.130.

In this regard, the Board acknowledges that effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to "DSM-IV," American Psychiatric Association: Diagnostic and Statistical Manual Of Mental Disorders, 4th Edition (1994).  The amendments replace those references with references to the recently updated "DSM-5," and examinations conducted pursuant to the DSM-5 do not include GAF scores.  However, in this case the appeal was first certified to the Board before those changes and a good deal of the evidence includes GAF scores, which are relevant to this case.  

A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood.  A GAF of 41-50 denotes serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning.  A GAF of 51-60 denotes moderate symptoms (e.g. flat affect, circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers).  A GAF of 61-70 denotes some mild symptoms (e.g. depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g. occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.

While an examiner's classification of the level of psychiatric impairment as reflected in a GAF score can be probative evidence, such a score is by no means determinative of the rating assigned by VA in evaluating a psychiatric disorder under the rating criteria.  See 38 C.F.R. §§ 4.2, 4.126 (2016); VAOPGCPREC 10-95 (March 31, 1995).  Rather, VA must take into account all of the Veteran's symptoms and resulting functional impairment as shown by the evidence of record in assigning the appropriate rating, and will not rely solely on the examiner's assessment of the level of disability at the time of examination.  See 38 C.F.R. § 4.126.


A.  Prior to September 6, 2013

The Veteran contends that his psychiatric disorder, claimed as PTSD, meets the criteria for a rating in excess of 30 percent disabling.

VA medical notes from September 2001 indicate that the Veteran reported PTSD symptoms and was referred for evaluation.  Medical notes from December 2001 provide a diagnosis of insomnia but rule out PTSD.  A medical record dated April 4, 2002 notes that the primary problems reported were insomnia and PTSD symptoms.

Medical progress notes provide that in April 2002, the Veteran was diagnosed with PTSD.  The note described the Veteran is married, unemployable, and assigned a GAF score of 55.  The note provides that the Veteran's strength was family support/motivated, and that his weakness was lack of income/transportation.

VA treatment records from September 2002 document that the medical professional found the Veteran's PTSD symptoms and sleep were fairly stable.  Treatment records from September 2002 provide an Axis I diagnosis as rule out PTSD; insomnia; polysubstance by history.  The Veteran was assessed a GAF score of 53 and also noted scores of 60 and 55 this year.

The November 2002 VA examination report for PTSD provides that the Veteran reported that he started having nightmares and flashbacks, trouble sleeping, nervousness, depression, bad dreams, poor concentration, irritability, short temper, and feelings of isolation.  The report indicates that the Veteran drank alcohol and used cocaine and marijuana to ease his emotional situation.  The note provides that the Veteran's subjective symptoms were nightmares and flashbacks about Vietnam, sometimes twice a week and sometimes every two weeks, with trouble sleeping every now and then.  The Veteran reported nervousness and depression frequently.  The Veteran reported bad dreams related to his service in Vietnam.  The note provides that the Veteran reported waking up at night, sweating and screaming from time to time.  The Veteran reported that he is easily irritated and has a short temper and poor concentration.  The Veteran reported that he avoids crowds and noises and has anger and feelings of isolation.  The Veteran reported avoiding war movies, activities or situations that arouse recollection of his traumatic Vietnam experiences.

Upon a mental status examination, the examiner found that the Veteran answered questions but tended to isolate himself frequently.  The examiner stated that the Veteran is hyper alert with increased startle response every now and then.  The report notes that the Veteran's speech was coherent and his mood was nervous.  The report provides that the Veteran is depressed frequently and his affect was constricted.  The Veteran denied hallucinations, suicidal or homicidal ideations.  The report provides that the Veteran's orientation and memory are preserved and his insight and judgment are intact.  The examiner provided an Axis I diagnosis of PTSD, moderate and assessed the Veteran a GAF score of 60, noting that the Veteran has moderate PTSD symptoms and is unable to hold a job because of his PTSD symptoms and medical problems.

VA medical progress notes from January 2004 indicate that the Veteran returned to treatment and provided that insomnia was the main problem, noting that he was already followed for PTSD.

VA medical records received in June 2004 include a medical record from February 2004 indicating an Axis I diagnosis of PTSD, insomnia, and polysubstance by history.  The report indicates that the Veteran was married with good support and was assessed a GAF score of 55, noting that this year there was a GAF score of 53.  The record notes that the Veteran was referred for PTSD related to his complaints of flashbacks, prompted by noises in the environment, nightmares, anxiety, sleep problems, and irritability.

The March 2010 VA examination report for PTSD indicates that the Veteran received a diagnosis of PTSD, chronic mild, with a GAF score of 61.  The examiner noted mild social and occupational impairment due to PTSD.  The report provides that on examination, the Veteran's speech was s clear, his attitude was cooperative and friendly, his mood was good, and he was oriented to person, time, and place.  The report indicates that the Veteran's thought process and content were unremarkable.  The report indicates that the Veteran had no delusions, hallucinations, obsessive or ritualistic behavior, or panic attacks.  The report also indicates that the Veteran had sleep impairment but no problem with activities of daily living.  The examiner indicated that the Veteran's PTSD resulted in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to PTSD symptoms but with generally satisfactory functioning.  The examiner noted the Veteran's symptoms include hypervigilance, sleep disturbance, and an exaggerated startle response, causing an occasional decrease in work efficiency.  Remote memory was noted as normal, recent memory was mildly impaired, and immediate memory was normal.  The report provides that the examiner indicated no reduced reliability and productivity due to the Veteran's PTSD.

In an August 2010 statement, the Veteran asserted that his PTSD made him unable to hold any meaningful employment or to communicate effectively with people.  He stated that it is difficult for him to interact with people and that he is somewhat withdrawn and isolated.  He said it is a struggle to identify who he is and to interact in a normal manner.  He provides that he frequently has memory lapses and has constant flashbacks of the war.  He explained that his inability to communicate has cost him mental, physically, and emotionally.  He stated that on a number of occasions he has unexpected block out spells and that the sound of a helicopter and firecrackers has caused him to hallucinate, thinking that he was in the war.  The Veteran stated that he has undergone anger management due to conflicts and fights he has had with individuals due to his experiences in service and that he was arrested and spent time in jail for his actions.  He explained that he has taken medication to help him cope with everyday life, for PTSD, depression, and sleeping pills.  He provides that prior to the war he never depended on medication but that now it is a necessity.

VA outpatient treatment records from April 2012 provide that the Veteran denied psychosis, mood swings, and depression.  The record provides that the Veteran denied suicidal or homicidal ideations as well as any recent alcohol or substance abuse.  The Veteran's affect was appropriate, his thought process was linear and goal directed, there was no observed abnormality in abstract thinking, and there was no overt psychosis.  The Veteran's mood was noted as within normal limits.  The records also provide that the Veteran was alert, attentive, and oriented.  The Veteran's judgment was intact and his insight was present.

Treatment records dated May 2013, indicate that the Veteran was cooperative, his affect was appropriate, and his thought process was linear and goal directed.  The report shows no overt psychosis nor any noted perceptual disturbances.  The Veteran's judgment was intact and his insight was present.  Treatment record dated July 2013, showed no significant changes in the Veteran's symptoms.

Based on the foregoing, the Board finds that the evidence is against granting a disability rating higher than 30 percent for the Veteran's PTSD.  The evidence does not show that the Veteran's symptoms have been of the type and degree contemplated by the criteria for a 50 percent disability rating.  The evidence does not show that the Veteran has had suicidal or homicidal ideation, obsessive behavior or rituals, illogical speech, impaired impulse control, near continuous panic or depression, or neglect of personal appearance and hygiene.  Moreover, the extent of his impairment is not shown to be that required for a 50 percent or higher rating.  Hi GAF scores are consistent with the description of the Veteran as provided in the treatment records and in the examination reports.  The Board finds these records and reports to be the most probative evidence of record.  


B.  From September 6, 2013

The Veteran contends that his psychiatric disorder, claimed as PTSD, meets the criteria for a rating higher than 50 percent disabling.

The Veteran's service-connected PTSD is presently assigned a 50 percent rating from September 6, 2013.

The September 2013 VA PTSD examination report provides that the Veteran received a diagnosis of PTSD, chronic moderate.  The Veteran was assessed a GAF score of 60.  The report provides that the examiner noted occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily with normal routine behavior, self-care, and conversation.  The examiner noted that the Veteran's thought processes were logical and goal directed and there was no overt evidence of mental content symptomatology, perceptual disturbance, or gross cognitive confusion.  The examiner noted that the Veteran's symptoms of PTSD were listed as depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.  The report provides that the Veteran was married, and had occasional contact with his grandchildren, one sister, and two of his children.  The Veteran stated that he had no friends, aside from his wife.  He denied substance abuse and reported stress associated with feelings of detachment and social isolation.  The Veteran reported limited activities.

A March 2015 letter from the Tuscaloosa VAMC provided that the Veteran was being treated for PTSD.  The Veteran's current symptoms were listed as mild depression and insomnia.  The letter stated that the Veteran was being adequately treated with medications and that the Veteran was compliant with medications and treatment.  The letter also provided that the Veteran continued to deny suicidal ideations, homicidal ideations, hallucinations, and abuse of alcohol or drugs.

Treatment records dated January 2015, shows that the Veteran was alert and oriented.  The record indicates that the Veteran's attention and concentration were appropriate, his speech was logical and goal directed, and his judgment and insight were intact.  The record notes that the Veteran's affect was mildly constricted, his mood was mildly depressed, and he was calm and cooperative.  The record indicates no active psychosis.

A treatment record dated May 2016, shows that the Veteran's demeanor was cooperative, and he was alert and oriented.  The Veteran's affect was noted as appropriate, his thought process was logical, and no psychotic symptoms were indicated.  The report provides that the Veteran had no hallucinations, his judgment was normal.

Treatment records from February 2017, provided that the Veteran was casually dressed, was cooperative, alert, and oriented.  His speech, tone and motor activity were noted as normal.  His mood was euthymic, his affect was appropriate, and his thought process was logical.  There was no evidence of psychotic symptoms.  The Veteran reported no hallucinations, and his judgment was noted as normal.  The Veteran indicated no homicidal nor suicidal ideation.

Based on the foregoing, the Board finds that the evidence is against granting a disability rating higher than 50 percent for the Veteran's PTSD.  The evidence does not show that the Veteran's symptoms have been of the type and degree contemplated by the criteria for a 70 percent disability rating.  The evidence does not show that the Veteran has had suicidal or homicidal ideation, obsessional rituals, illogical speech, impaired impulse control, near continuous panic or depression, or neglect of personal appearance and hygiene.  The preponderance of evidence is also against a finding that the Veteran's PTSD results in total social and occupational impairment.  

A higher evaluation of 70 percent is not warranted for posttraumatic stress disorder unless the evidence shows occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as:  suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, 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), or inability to establish and maintain effective relationships.

As the preponderance of the evidence is against the claim for a rating higher than 50 percent from September 6, 2013, the benefit-of-the-doubt doctrine is not applicable and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Board finds that for the entire appeal period, the evidence does not show that the Veteran's symptoms have been of the type and degree contemplated by the criteria for a 100 percent disability rating.  The evidence does not show that that the Veteran has had gross impairment in thought processes or communication, grossly inappropriate behavior, or that he is in persistent danger of hurting himself or others.  There have been no symptoms of like kind to those listed for the 100 percent rating.  The record does not indicate that the Veteran has ever had total occupational and social impairment.

The Board finds that a preponderance of the evidence is against the assignment of a higher disability rating other than that listed herein for the Veteran's PTSD on a schedular basis for any period on appeal.  38 U.S.C.A. § 5107(a).  The Board has considered staged ratings, but finds that the evidence does not support the assignment of staged ratings, other than those already assigned in this case.

Finally, for all periods on appeal, the Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted.  The Board finds that the Veteran's symptoms of PTSD are contemplated by the schedular rating criteria.  Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration.  Thus, no analysis is required.  See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007); see also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board).

VI.  TDIU

The Board previously determined that the issue of TDIU was raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).

A "schedular" TDIU may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a).

The Veteran has one service connected disability.  Pursuant to this decision, his PTSD ratings of 50 percent from September 6, 2013, and 30 percent prior to September 6, 2013 are continued.  The Veteran's rating is 50 percent from September 6, 2013, and he does not meet the percentage requirements under § 4.16(a).

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16.  38 C.F.R. § 4.16(b).  The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.  Id.

Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2016).  In determining the severity of impairment, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by non-service-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016).

Marginal employment shall not be considered substantially gainful employment for purposes of entitlement to TDIU.  38 C.F.R. § 4.16(a).  Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Id.  Consideration shall be given in all claims to the nature of the employment and the reason for termination.  Id.

As discussed above, medical records from April 2002 and September 2002 indicate that the Veteran is unemployable.  However, there is no explanation as to how his PTSD symptoms render him unemployable.  VA Treatment records from September 2011, show that the Veteran was a painter and reported that he had been unable to do any kind of painting for the last ten years but that he does some part-time painting.  The Veteran provided that because of pain in his neck and hands and his depression, he was unable to work full-time.

After a thorough review of the evidentiary record, the Board finds that the functional limitations imposed by the Veteran's service-connected disability does not render him unable to secure and follow a substantially gainful occupation.  The most probative evidence of record does not demonstrate that the Veteran's service-connected disability would preclude him from being able to engage in substantially gainful employment.

However, the Court has held that the Board is the entity that determines whether a TDIU is warranted, not the experts.  See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014) (explaining that "applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner").  The Board's decision rests on all of the relevant and probative evidence, not the medical opinions in isolation.

In light of the foregoing, it is clear that the Veteran has experienced impairment due to his service-connected PTSD.  However, by the assigned schedular ratings during the appeal period, the Veteran has been compensated for the symptomatology associated with each of his service-connected disabilities.  Thus, impairment of industrial capacity due to service-connected disabilities has already been taken into consideration via the disability ratings assigned.  The evidence does not show that the Veteran is incapable of performing the physical and mental acts required by employment due solely to his service-connected disability.

As such, the evidence weighs against finding that his service-connected disabilities have combined to cause unemployability.  Entitlement to TDIU is thus not established.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied.  38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Moreover, referral of the TDIU claim to the Director of Compensation Service for extra-schedular consideration is not warranted because the preponderance of evidence is against a finding that the Veteran's service connected PTSD renders him unable to secure or follow a substantially gainful occupation.


ORDER

The claim of service connection for arthritis of the left hand is reopened.

Entitlement to service connection for arthritis of the left hand is denied.

Entitlement to service connection for hypertension is denied.

Entitlement to service connection for hypercholesterolemia (high cholesterol) is denied.

Entitlement to service connection for type 2 diabetes mellitus, to include as due to exposure to Agent Orange, is denied.

Entitlement to an effective date earlier than April 25, 2002 for the grant of service connection for PTSD is denied.

Entitlement to an initial rating in excess of 30 percent prior to September 6, 2013, for PTSD is denied.

Entitlement to an initial rating in excess of 50 percent from September 6, 2013 for PTSD is denied.

Entitlement to a TDIU is denied.




____________________________________________
JAMES G. REINHART
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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