Citation Nr: 18160687
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-59 293
DATE:	December 27, 2018
ORDER
The application to reopen the claim for service connection for hypertension is denied. 
The application to reopen the claim for service connection for a skin disorder is denied. 
The application to reopen the claim for service connection for soft tissue colon cancer is denied.
The claim for service connection for sleep apnea is denied.
The claim for service connection for a bladder disorder is denied.
The claim for an increased rating for posttraumatic stress disorder (PTSD) in excess of 70 percent is denied.
The claim for an effective date prior to May 19, 2015, for a 70 percent rating for PTSD is denied.  
The claim for a rating in excess of 10 percent for hallux valgus and osteoarthritis of the left foot, previously classified as status post (SP) arthroplasty of the left fifth toe, is denied.
Entitlement to a 10 percent rating, in excess of the current noncompensable rating, for residuals of a keratoma of the plantar aspect of the right foot with metatarsalgia, is granted.
FINDINGS OF FACT
1. Although notified of an October 2007 rating decision which denied service connection for hypertension and although notified of a November 2013 rating decision which denied reopening of claims for service connection for a skin disorder and soft tissue colon cancer, the Veteran did not appeal those decisions; no additional relevant records were received within one year of those rating decisions nor were any additional service records received.  The October 2007 and November 2013 rating decisions are final. 
2.  The additional evidence received since the October 2007 rating decision denying service connection for hypertension consists of evidence that is cumulative and redundant, and does not raise a reasonable possibility of substantiating the claim.  
3.  The additional evidence received since the November 2013 rating decisions denying reopening of claims for service connection for a skin disorder and soft tissue colon cancer consists of evidence that is cumulative and redundant, and does not raise a reasonable possibility of substantiating those claims.  
4.  Sleep apnea is not clinically confirmed.  
5.  A bladder disorder is not clinically confirmed.  
6.  The evidence does not demonstrate that the Veteran’s symptoms of PTSD more nearly approximate total occupational and social impairment.
7.  The Veteran did not appeal an October 2005 rating decision denying service connection for PTSD and the subsequent grant of service connection and assignment of an initial 70 percent schedular rating are properly assigned as of May 19, 2015, the date of the application to reopen the claim for service connection for PTSD. 
8.  The Veteran has mild left hallux valgus and osteoarthritis of the left foot which does not compromise weight-bearing or require the use of arch supports, orthotic inserts or shoe modifications.  
9.  The Veteran has not active and disabling residuals of excision of a keratoma of the plantar aspect of the right foot and any residual scarring is asymptomatic but he has mild left hallux valgus and metatarsalgia of the right foot with pain on movement and weight-bearing without compromising weight-bearing or necessitating the use of arch supports, orthotic inserts or shoe modifications. 
CONCLUSIONS OF LAW
1. The October 2007 rating decision which denied service connection for hypertension is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 
2.  The November 2013 rating decision which denied reopening of claims for service connection for a skin disorder and soft tissue colon cancer is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 
3.  The criteria for reopening the claim of service connection for hypertension are not met.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018).  
4. The criteria for reopening the claim of service connection for a skin disorder are not met.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018).  
5. The criteria for reopening the claim of service connection for a soft tissue colon cancer are not met.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018).  
6.  The criteria for service connection for sleep apnea are not met.  38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.304 (2018).  
7.  The criteria for service connection for a bladder disorder are not met.  38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.304 (2018).  
8.  The criteria for a rating for PTSD in excess of 70 percent have not been met.  38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1-4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2017).
9.  The criteria for an effective date prior to May 19, 2015, for a 70 percent rating for PTSD are not met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400(o) (2018).  
10.  The criteria for a rating in excess of 10 percent for hallux valgus and osteoarthritis of the left foot, previously classified as SP arthroplasty of the left 5th toe, are not met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.41, 4.45, 4.49, 4.71a, DCs 5003 and 5280 (2018).  
11.  The criteria for no more than a 10 percent rating for residuals of excision of a keratoma of the plantar aspect of the right foot are met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.41, 4.45, 4.49, 4.71a, DC 5279 (2018). 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service in the Army from August 1966 to August 1969, during which he served in Vietnam from February 1967 to February 1968, and he had active service from July 1970 to July 1987.  

This matter comes before the Board of Veterans’ Appeals (Board) from an August 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO).  

In pertinent part, the August 2015 rating decision which is appealed increased a 30 percent rating for PTSD to 70 percent, effective May 19, 2015 (date of receipt of claim for an increased rating).   That rating decision reflects that the RO was not inferring an issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) because the Veteran had indicated that his unemployment was due to illness from nonservice-connected cancer.  However, during the pendency of this appeal, the Veteran’s attorney has submitted evidence from a vocational expert and the attorney has set forth argument for entitlement to a TDIU rating.  Since this claim is now specifically set forth, rather than being inferred (or as the RO found, not inferred), the circumstances are distinguishable from those in Rice v. Shinseki, 22 Vet. App. 447 (2009) and, so, the proper course is to refer this matter to the RO for initial adjudication.  This is particularly true considering the grant herein of a 10 percent rating for the service-connected disability of the right foot.  

In this case, additional evidence was received from the Veteran after February 2, 2013, and after receipt of the VA Form 9 which was also received after February 2, 2013.  However, initial consideration thereof was not specifically reserved.  Accordingly, the Board may proceed to consider the appeal with referral of such evidence for initial RO consideration.  See 38 U.S.C.A. § 7105(e), as amended by Section 501 of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154.  

The case was certified for appellate review in January 2017.
Background

An August 1966 examination for enlistment into the Veteran’s first period of active service was negative for any abnormality.  In an adjunct medical history questionnaire he had no relevant complaint or history.  

The July 1969 examination for discharge from the Veteran’s first period of active duty was negative for any abnormality.  In an adjunct medical history questionnaire he reported not having or having had skin diseases, high or low blood pressure, frequent or painful urination, or frequent trouble sleeping.  

A June 1970 examination for entrance into the Veteran’s second period of active service was negative.  In an adjunct medical history questionnaire he related no relevant complaint or history other than having had hepatitis in in 1965 which had resolved and been asymptomatic since then.  

In October 1973 the Veteran had a rash, with bumps, on his chest for 3 days after being in the field.  On examination he had small macular-papular lesions on his chest and abdomen with weeping and crusting.  The assessment was dermatitis of questionable etiology, for which he was given Benadryl.  

In May 1976 the Veteran had a mild rash on his chest and neck, for which he was given Calamine lotion.  The next day the impression was contact dermatitis, for which he was given Benadryl.  

In December 1980 the Veteran had a rash on his abdomen for 3 days.  On examination he had flaky patches on the skin of his abdomen.  The impression was that he had had a reaction to soap and water.  

All blood pressure readings during both periods of active service were within normal limits, with the exception that in September 1981, when he had a bee sting, his blood pressure was 120/92, and in December 1981, when he had a burning sensation in his eyes, his blood pressure was 128/90.  In 1983 he had a sebaceous cyst removed from his head.  

In July 1986 the Veteran had a hammer toe deformity of the left 5th toe and a “porokeratoma” of the plantar aspect of the right foot, for which he had arthroplasty of the proximal interphalangeal joint of the left 5th toe and excision of the benign “porokeratoma” of the plantar aspect of the right foot. 

The April 1987 examination for retirement from the Veteran’s second period of active service was negative.  

On VA examination in November 1987 the Veteran’s blood pressure was 122/90.  

Historically, a January 1988 rating decision granted service connection for SP arthroplasty of the 5th digit of the left foot and excision of a keratoma of the plantar aspect of the right foot, which was assigned an initial noncompensable disability rating as of August 1, 1987 (the day after discharge from active service).  A February 1999 rating decision confirmed and continued that noncompensable disability rating.  

On official examination in September 1998 it was noted that the Veteran worked as a janitor.  He walked with a slight antalgic gait, limping to unload weight off of his right foot. 

VA outpatient treatment (VAOPT) records in 2001 show that the Veteran had prostatic enlargement.  

In VA Form 21-4138, Statement in Support of Claim, in October 2004 the Veteran reported that he had been awarded Social Security Administration (SSA) disability benefits because of a back condition. 

On official examination in March 2005 it was reported that the Veteran’s gait was within normal limits.  He had scars on the dorsal aspect of the 5th toe of each foot which measured about 1 cm. by 0.1 cm.  There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, keloid formation, hypopigmentation, hyperpigmentation, abnormal texture of the scars and they did not cause any limitation of motion.  An X-ray revealed a mild hallux valgus deformity of the left foot and early osteoarthritic changes at the base of the left 1st toe.  

A June 2002 VA outpatient treatment (VAOPT) record reveals that the Veteran reported having two years of college education, having majored in food service, and that he was disabled due to a slipped disc in his back.  

A May 2003 VAOPT record reflects that the Veteran had a skin rash from a fungal infection, for which he was given topical medication.  

A January 2004 VAOPT record shows that the Veteran reported that he had had a colonoscopy done which revealed that he had colon cancer, and he had had surgery and was being followed by Oncology.  

A March 2005 rating decision recharacterized the disability of the left foot from SP arthroplasty of the 5th digit of the left foot, to hallux valgus and osteoarthritis of the left foot, previously, and assigned a 10 percent disability rating as of October 25, 2004.  A separate noncompensable rating for residuals of excision of a keratoma of the plantar aspect of the right foot was confirmed and continued.  

An October 7, 2005 rating decision denied service connection for PTSD.  The Veteran was notified of that decision by RO letter of October 24, 2005.  After that decision no additional relevant VA clinical records were received within one year and no additional relevant service treatment records were received.  

The Veteran’s original claim, VA Form 21-4138, Statement in Support of Claim, for service connection for hypertension, residuals of a cerebrovascular accident (CVA or stroke) due to hypertension, and soft tissue colon cancer was received in May 2007.  

Received later in May 2007 were records of the Veteran’s hospitalization in July 2003 at the North Arundel Hospital when he was admitted for abdominal pain, nausea, and vomiting.  He had had abdominal discomfort, off and on, for over one month’s duration.  An abdominal CT scan revealed carcinoma of the transverse colon, which was confirmed by a colonoscopy, and for which he had a right hemicolectomy with ileotransverse colostomy.  

Records of the Wayne Memorial Hospital of May 2007 show that at admission on May 13, 2007, he complained of having developed slurred speech and right-sided weakness that morning.  At admission his blood pressure was 186/105.  He was placed on a stroke protocol.  He was started on Vasotec which controlled his blood pressure satisfactorily.  His medical history was significant for colon cancer, status post chemotherapy initially in 2004, with annual follow-ups.  The discharge diagnoses were hypertension and a CVA with right-sided paresis.  

An October 24, 2007, rating decision denied service connection for hypertension, residuals of a cerebrovascular accident with right-sided paresis, and soft tissue colon cancer; and the Veteran was notified of that decision by RO letter of October 26, 2007, but he did not appeal that decision.  After that decision no additional relevant VA clinical records were received within one year and no additional relevant service treatment records were been received.  

In the Veteran’s VA Form 21-526, Application for Compensation, received on May 26, 2009, he claimed service connection for, in pertinent part, a skin condition which he claimed was due to herbicide exposure during his service in Vietnam from March 1966 to March 1967.  

An October 20, 2009, rating decision denied service connection for a skin disorder, to include as not due to inservice herbicide exposure.  The Veteran was notified of that decision by RO letter of October 23, 2009, but he did not appeal that decision.  After that decision no additional VA clinical records were received within one year and no additional relevant service treatment records have been received.  

VAOPT records from August 2009 to June 2010 include an August 2009 VAOPT record which noted that the Veteran had residual right foot drop from his prior stroke.  Also, a November 2009 VAOPT record noted that the Veteran had an occasional macular/papular rash on his legs which almost seemed like eczema.  When evaluated later that month for this, the Veteran reported that he had had a strange rash on his right thigh and had had it, off and on, for about 40 years, since returning from Vietnam.  He stated that it started as a small blister and would progress to a dark plaque.  After an examination, the assessment was that it was unclear what his lesions were but the relapsing and remitting nature as well as the chronicity argued against it being a malignancy.  The dark thickened appearance might be consistent with “keloid” and it was questioned whether the dark plaques were a keloid reaction to an underlying eczematous disorder.  

A March 2010 VAOPT record reflects a dermatology consultation for evaluation, and possible biopsy, of right thigh lesions which had been intermitted for 6 years.  His past report of having had a strange rash on his right thigh and had had it, off and on, for about 40 years, since returning from Vietnam was noted.  On examination he had, on both legs, discrete round hyperpigmented lichenified plaques consistent with nummular eczema.  The assessment was nummular eczema but other possible diagnoses, which were doubted, were lichen planus, drug eruption, “id reaction,” tinea (absence of scale)”, parapsoriasis, and psoriasis.  

An October 2011 VAOPT record reflects, in part, that the Veteran had stopped taking “prazosin” (apparently taken for symptoms of PTSD) because he had a skin rash which he believed was due to the “prazosin.”  

On VA examination for PTSD on March 6, 2012, the Veteran primary complaints were nightmares, sleep disturbance, social withdrawal, an irritability.  Although he described his symptoms as being in the moderate range, the examiner reported that there appeared to be only mild impairment in social and occupational functioning due to signs and symptoms of PTSD.  His symptoms appeared to have worsened since he stopped working.  His depressive symptoms appeared to have had their onset after he stopped working and went on disability in 2002.  His depression was not considered to be due to military service or secondary to a service-connected disorder.  Overall, his depressive symptoms appeared to be in the mild to moderate range, and caused mild to moderate impairment in social functioning.  The examiner stated that the best summary of the Veteran’s occupational and social functioning was 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.  It was noted that his physical activity had been more limited since his 2005 stroke.  The examiner noted that records indicated that the Veteran had been deployed in Vietnam from February 1967 to February 1968.  After his second period of service he had worked for a while as a cook but had stopped working, in a factory, in 2002 due to back problems.  

A July 30, 2012, rating decision granted service connection for PTSD which was assigned an initial 30 percent disability rating, all effective November 7, 2011, date of receipt of claim for service connection.  The Veteran was notified of that rating decision by letter of August 3, 2012, but he did not appeal that decision.  

A January 13, 2013, VAOPT record shows that the Veteran had a history of a CVA with residual right foot drop, and on examination he had weakness in right ankle plantar flexion and dorsiflexion.  

An October 15, 2013, VA Disability Benefits Questionnaire (DBQ) for skin diseases reflects that the Veteran had a diagnosis of eczema, which had been diagnosed in 2011.  The condition did not cause scarring and there were no systemic manifestations.  The diagnosis was eczema of both thighs, more on the right.  After reviewing the claim file the examiner opined that the Veteran’s claimed skin condition was less likely than not incurred in or caused by an inservice injury, event or illness.  It was explained that the Veteran’s current condition appeared to be eczema, which started around 2011.  The Veteran complained of developing pruritic and sometimes painful lesions on both thighs, but more on the right, which had started about two (2) years ago.  The lesions were aggravated by humidity and heat.  This kind of eczema appeared recently and was less likely to be related to his remote inservice rash of the chest in 1973. 

A November 25, 2013 rating decision denied service connection for a skin condition, on the basis that a claimed skin disorder was not presumptively due to inservice herbicide exposure, and denied reopening of a claim for service connection for soft tissue colon cancer on the basis that new and material had not been submitted and because colon cancer was not presumptively due to inservice herbicide exposure.  The Veteran was notified of that decision by RO letter of November 26, 2013, but he did not appeal that decision.  After that decision no additional VA clinical records were received within one year and no additional relevant service treatment records have been received.  

Received on May 19, 2015, was VA Form 21-526EZ, in which the Veteran sought to reopen claims for service connection for hypertension, a skin disorder, colon cancer; and claimed service connection for sleep apnea and a bladder disorder; and also claimed an increased rating for his service-connected disorders of the feet and PTSD.  

A VA DBQ for examination of the Veteran’s feet on July 24, 2015, shows that the Veteran had metatarsalgia of the right foot and hallux valgus of both feet with corns and callosities of both feet.  The Veteran complained of sharp pain in both feet with flare-ups which he described as causing soreness of such severity that he could hardly walk.  

On physical examination the Veteran did not have a Morton’s neuroma but had metatarsalgia of the right foot.  He did not have hammertoes of either foot.  He had mild hallux valgus of each foot but had not had surgery for hallux valgus.  He had corns and callosities of each foot which were described as being mild.  His disorders of the feet did not compromise weight-bearing, and did not require arch supports, custom orthotic inserts or shoe modifications.  He had no residuals signs or symptoms of foot surgery.  On examination he had pain in his right foot, but none in his left foot although he reported having past intermittent left foot pain.  With respect to functional limitations he had pain in both feet upon movement and upon weight-bearing.  As to other functional loss in each foot, he had difficulty with prolonged walking and standing but no other functional loss during flare-ups or when the feet were repeatedly used over a period of time.  It was reported that he had no residual scarring.  He did not use any assistive device as a normal mode of locomotion.  The functional impairment did not equate to amputation with prosthesis.  The disabilities of his feet impacted his ability to work in that he had difficulty with prolonged walking and standing which would make any occupation requiring those functions difficult.  

An August 18, 2015, addendum reflects that the examiner reported that he could not provide an opinion as to the etiology of the Veteran’s metatarsalgia of the right foot without resorting to mere speculation, due to the extensive history of multiple foot conditions it was difficult to state which condition was causing the metatarsalgia.  Also, as to the etiology of the corns and callosities of each foot, the Veteran had thickening of skin from excessive pressure on those areas of the feet, and this was a new and separate occurrence which was not related to the service-connected keratoma of the plantar aspect of the right foot.  

A VA DBQ gastrointestinal examination on July 24, 2015, shows that the Veteran had residuals of colon cancer, with colectomy in 2003.  The examiner reported that the onset of the cancer had been in 2003 when the Veteran had unintentional weight loss, blood in his stool, dark tarry stool, nausea and vomiting.  He was now in remission but his residual symptoms included abdominal pain, poor appetite, and occasional nausea and vomiting.  He was also undernourished.  As to the impact on his ability to work, he had difficult performing strenuous activities due to weakness from undernourishment.  His residual abdominal surgical scar was sometimes painful.  

A VA DBQ PTSD examination on August 1, 2015, reflects an examiner’s assessment, after review of the claim file and VA electronic records, that PTSD caused, in summary, occupational and social impairment with deficiencies in most areas, e.g., work, school, family relations, judgment, thinking and/or mood.  

The Veteran reported that he had struggled in his marriage but he and his wife were working to improve their marriage.  He had stopped working due to cancer in 2003 and had not worked since then.  He had previously been treated by VA for PTSD but was not now in a treatment program.  He had never complied with past medication regimens.  He denied homicidal and suicidal ideation.  He had many of the classic symptoms of PTSD.  His PTSD symptoms caused clinically significant distress or impairment in social, occupational or other important areas of functioning.  

The Veteran’s symptoms included a depressed mood, anxiety, suspiciousness, panic attacks more than once weekly, chronic sleep impairment, impairment of short and long term memory with retention of only highly learned material, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships as well as difficulty in adapting to stressful circumstances, including work or a work-like setting.  However, he was fully oriented and neatly groomed.  He was adequately engaged throughout the examination but became tearful when discussing his mental health decline due to PTSD.  Other symptoms were irritability, anger outbursts, nightmares, avoidance of crowds, and social isolation.  He was competent to manage his financial affairs.  

Records received in October 2016 show that the Veteran was awarded Social Security Administration (SSA) disability benefits in 2001 due to discogenic and degenerative disease of the back, and osteoporosis.  He also alleged that he had problems with his knees and feet.  A report of an October 2001 evaluation shows that he complained of sleep disturbance due to pain.  A May 1999 clinical record reflects that his past medical history was negative for hypertension.  

In a January 2017 letter the Veteran’s wife reported that PTSD had affected his ability to function independently, appropriately, and effectively.  He had difficulty sleeping, going to bed at 2:00 a.m. and awaking at 6:00 a.m.  His lack of sleep made him irritable.  He was easily frustrated and impatient.  His memory had decreased over the years.  He had difficulty putting thoughts into words.  He seemed to have become more paranoid over time.  He could not focus or concentrate long enough to cook a hotdog.  

In a January 2017 letter the Veteran’s daughter reported that the Veteran had memory loss due to PTSD and he had difficulty handling a stressful situation, and stress caused him to become angry.  He had no friends, and stayed to himself.  He had difficulty opening up, even to his family.  He cried a lot but would not discuss his problems.  At times he was so depressed that he did not shower or shave for days, and would wear the same clothes.  At times he would lash out for no reason.  He could not focus or concentrate for long.  His focus was so poor that he had left the water running, flooding the floors.  

Of record is a March 2017 Residual Functional Capacity report which reflects that the Veteran would miss 3 or more days of work a month due to mental illness.  That private psychologist also executed a PTSD DBQ in March 2017 which reflects that after a review of VA record and the claim file, in summary the Veteran’s PTSD caused occupational and social impairment with deficiencies in most areas, e.g., work, school, family relations, judgment, thinking and/or mood.  

It was reported that the Veteran was socially isolated and withdrawn.  He lived with his wife.  He had classic symptoms of PTSD.  His symptoms also included a depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, near continuous pain or depression affecting his ability to function independently, appropriately and efficiently; chronic sleep impairment; mild memory loss; impairment of short and long term memory; flattened affect; disturbance of mood and motivation; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful occurrences, including work or a work-like setting; inability to establish and maintain effective relationships; impaired impulse control, e.g., unprovoked irritability with periods of violence; persistent delusions or hallucinations; neglect of personal appearance and hygiene; and intermittent inability to perform activities of daily living, including maintenance of personal hygiene.  

It was reported that on mental status examination the Veteran’s attention was normal but his concentration appeared variable.  He complained of increased trouble with short and long term memory.  He struggled to remember basic information.  His thought content was appropriate.  Organization of thought was goal directed.  There was a report of overt hallucinations (although this was not explained).  His intellectual abilities and capacity for abstraction, as well as his ability to interpret proverbs appeared to be variable.  His mood was anxious and nervous.  His affect was restricted.  He was suspicious and seemed rather vigilant.  His wife handled his finances.  

In an attachment, the private psychologist reported that the Veteran had chronic sleep impairment, including insomnia, broken sleep, and nightmares.  It was opined that the Veteran could not sustain stress in a competitive work environment or be expected to engage in gainful activity due to PTSD.  Attached were several articles relating to the impact of PTSD on a persons’ ability to engage in employment.  

Law and Regulations

Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in active military service or, if preexisting such service, was aggravated thereby.  38 U.S.C. § 1131; 38 C.F.R. § 3.303(a).  To establish service connection, the record must contain evidence of (1) a current disorder, (2) in-service incurrence or aggravation of an injury or disease, and, (3) a nexus between the current disorder and the in-service disease or injury.  See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Service connection may also be granted for a disease or disability first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease or disability was incurred in service.  38 C.F.R. § 3.303(d). 

A rebuttable presumption of service connection exists for chronic diseases, specifically listed at 38 C.F.R. § 3.309(a) (and not merely diseases which are “medically chronic”), including cardiovascular-renal disease, which includes hypertension, and cancer, if the chronicity is either shown as such in service which requires sufficient combination of manifestations for disease identification and sufficient observation to establish chronicity (as opposed to isolated findings or a mere diagnosis including the word ‘chronic’), or manifests to 10 percent or more within one year of service discharge (under § 3.307).  If not shown as chronic during service or if a diagnosis of chronicity is legitimately questioned, continuity of symptomatology after service is required, 38 C.F.R. § 3.303(b), but the use of continuity of symptoms is limited to only those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  The presumption may be rebutted by affirmative evidence of intercurrent injury or disease which is a recognized cause of a chronic disability.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed.Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997).  For a chronic disease to be shown during service or in a presumptive period means that it is “well diagnosed beyond question” or “beyond legitimate question.”  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

For VA purposes, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90.  See 38 C.F.R. § 4.104, Diagnostic Code 7101.   

VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, namely from February 28, 1961, to 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 that service. 38 C.F.R. § 3.307(a)(6)(iii).  

If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne; soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma); and ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina.  

However, note 2 to 38 C.F.R. § 3.309(e) provides that for purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 

Notwithstanding the presumptive provisions, service connection for claimed residuals of exposure to herbicides also may be established by showing that a disorder resulting in disability is, in fact, causally linked to the exposure.  See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir.), citing 38 U.S.C.A. §§ 1113 and 1116, and 38 C.F.R. § 3.303.

Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994); and 38 C.F.R. § 3.159(a)(2).  However, a lay person is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  See 38 C.F.R. § 3.159(a)(1).  Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient.  Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).

The Board must determine whether the weight of the evidence supports each claim or is in relative equipoise, with the appellant prevailing in either event.  However, if the weight of the evidence is against the appellant’s claim, the claim must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski 1 Vet. App. 49 (1990).  

VA must reopen a finally disallowed claim when new and material evidence is presented or secured with the respect the claim and review all evidence submitted since the last final disallowance of the claim on any basis to determine whether a claim may be reopened based on new and material evidence.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  See Hickson v. west, 12 Vet. App. 247, 251 (1999).  New evidence means existing evidence not previously submitted to agency decision-makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

1.  The application to reopen the claim for service connection for hypertension

The claim for service connection for hypertension was denied in October 2007 because despite having had a sole elevated diastolic blood pressure reading, of 92, in September 1981, and a single borderline diastolic blood pressure reading, of 90, in December 1981, the earliest evidence of hypertension did not antedate the Veteran’s 2007 private hospitalization when he had a stroke.  
The evidence since the October 2007 rating decision does not more than demonstrated that the Veteran continued to be treated for hypertension.  The record does not even contain lay histories of the Veteran’s having had chronic elevated blood pressure readings during service or prior to 2007, and there is also no new clinical evidence which addresses either the onset of hypertension during service or continuity of symptomatology after service.  
The additional evidence, even when viewed together with the old evidence, does not establish a reasonable possibility of allowing this service connection claim because they do not relate the Veteran’s hypertension to his military service, or the onset of hypertension within one year of his last period of service.
Thus, the Board finds that new and material evidence has not been submitted which is sufficient to reopen the claim and, as the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).
2.  The application to reopen the claim for service connection for a skin disorder

The STRs of record at the time of the November 2013 rating decision which denied service connection for a skin disorder showed that the Veteran was seen on several occasions during his second period of service, and after having served in Vietnam during his first period of service, for a rash from dermatitis on his chest in 1973 and 1976, and a rash in 1980 on his abdomen from soap, and removal of a sebaceous cyst from his head in 1983.  However, the earliest postservice evidence of a chronic skin disorder was in 2003 when he had a skin rash from a fungal infection.  This was more than 20 years after his military service.  Although VAOPT records in 2009 show that the Veteran reported having had a rash on his thighs since service in Vietnam, and a March 2010 VAOPT evaluation yielded a diagnosis of nummular eczema, a VA examiner opined in October 2013 that the Veteran’s claimed skin disorder was not incurred during military service, since his condition appeared to be eczema which began around 2011, decades after service.  Moreover, the evidence of record at the time of the November 2013 denial did not show that the Veteran had chloracne which would be presumptively due to inservice herbicide exposure.  

The evidence received since the November 2013 shows no more than at most that the Veteran continues to have dermatological problems but none of these records even remotely suggest that he has chloracne, and do not tend to show that any current dermatological disorder is related in any manner to either period of the Veteran’s military service.  Thus, the additional evidence, even when viewed together with the old evidence, does not establish a reasonable possibility of allowing this service connection claim.  

Since the evidence submitted after the November 2013 rating decision is not new and material, the claim for service connection is not reopened and the benefit-of-the-doubt doctrine is not applicable.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 

 
3.  The application to reopen the claim for service connection for soft tissue colon cancer
The STRs of record at the time of the November 2013 rating decision which denied service connection for soft tissue colon cancer were negative for cancer.  He was first seen for his colon cancer in July 2003, at which time he reported that the symptoms of abdominal discomfort were of only one months’ duration.  Thus, the evidence clearly established that the Veteran’s soft tissue colon cancer had its’ onset many years after active service.  And, there was no evidence that the cancer was of the type or form which is presumptively due to inservice herbicide exposure.  

The evidenced received since the November 2013 rating decision does add anything new to the Veteran’s clinical picture.  Thus, they do not establish a reasonable possibility of allowing the claim for service connection.  Consequently, it must be concluded that the evidence submitted after the November 2013 rating decision is not new and material, and that the claim for service connection is not reopened.  As new and material evidence to reopen has not been received, the benefit-of-the-doubt doctrine is not applicable.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).

4.  Entitlement to service connection for sleep apnea

The Veteran’s STRs are negative for signs, symptoms, complaints, history or treatment for any sleep impairment or disorder.  To the extent that the Veteran may believe, or has reported, that he had difficulty sleeping both during service and in the years after service, the earliest contemporaneous clinical evidence shows that his sleeping difficulties were due to his now service-connected PTSD.  

In this connection, the Veteran is service-connected for psychiatric disability and under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, chronic sleep impairment is a criterion for consideration in evaluating service connection psychiatric disabilities.  Specifically, it is listed as a criterion for a 30 percent disability rating and, as such, is encompassed in the current 70 percent disability rating which has been assigned for service-connected PTSD.  

The Board give little credibility to such lay evidence of continuity of symptoms of sleep apnea because there is virtually no evidence, lay or medical, of signs, symptoms, complaints, history, treatment or diagnosis of any sleep disturbance, including sleep apnea until decades after the Veteran’s military service.  During those decades he had ample time and opportunity to seek appointments with VA or even with non-VA clinical sources for treatment or evaluation for any sleep problems or disturbance that he might have had.  However, he did not do so and this suggests that he did not have any sleep disturbance, much less sleep apnea, during that time.  

Significantly, in this case sleep apnea has never been diagnosed by a medical professional.  Indeed, it has never been clinically confirmed by a polysomnogram and there is no evidence that the Veteran has ever had treatment for sleep apnea, such as using a CPAP device.  While competent to attest that he has sleeping difficulty, neither the Veteran nor any layperson is competent to attest that he actually has sleep apnea, because this requires both clinical testing, such as a polysomnogram, and evaluation by a professional familiar with such clinical disorders.  In other words, it is not permissible to construct a claim for sleep apnea merely because a person has sleeping disturbance which may a symptom of other disorders, such as in this case a psychiatric disorder. 

Thus, other than the Veteran’s uncorroborated statements and testimony, which the Board finds has little probative value, there is no support for the claim that now has sleep apnea or that it had its onset during the Veteran’s active service.  The Veteran may believe that the claimed sleep apnea is related to active service.  As to this, a layperson may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation.  See Jandreau, Id.  Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran being untrained and uneducated in medicine is not competent to address etiology in the present case.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (a claimant is not competent to provide evidence as to more complex medical questions).  
Moreover, it is neither shown, nor even contended, that any sleep apnea which he may have, even though not documented, is related in any way to this service-connected PTSD.  

The Board finds that the preponderance of the evidence establishes that the Veteran’s sleep apnea first manifested decades after active service, and it is not related to any disease, injury, or incident of military service, or caused or aggravated by a service-connected disorder or a disorder for which service connection is claimed.  Thus, the claim must be denied.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
5.  Entitlement to service connection for a bladder disorder

Not only are the STRs negative for a disorder of the bladder, likewise the Veteran’s postservice clinical records are negative for a disorder of the bladder.  Although VAOPTs since at least 2001 have shown prostatic enlargement, there is no diagnosis of record of a disorder of the bladder.  To the extent that the Veteran may believe that he has a bladder disorder, a diagnosis of this kind is one which is medically complex and beyond the knowledge, training, and education of a layperson and, so, is not competent to establish the existence of a bladder disorder.  

Service connection cannot be granted “[i]n the absence of proof of a present disability.”  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) and Romanowsky v. Shinseki, 26 Vet. App. 289, 293-94 (2013).  As there is no competent evidence that the Veteran has ever had a bladder disorder, service connection must be denied.  

General Rating Principles

Disability evaluations are determined by application of the criteria in the VA’s Schedule for Rating Disabilities, and are based on average impairment in earning capacity and includes consideration of the entire history and consideration of the functional impairment of the ability to engage in ordinary activities, including employment.  38 U.S.C. § 1155; 38 C.F.R. § Part 4.  38 C.F.R. §§ 4.1, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  When a question arises as to which of two ratings apply under a specific diagnostic code, the higher is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

Also, a higher rating may not be denied based on relief provided by medication when those effects are not specifically contemplated by the rating criteria.  Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (noting that such improvement is “relevant to the appellant’s overall disability picture”).  

Different evaluations may be assigned for separate periods of time based on the facts found, i.e., the evaluations may be staged.  See Hart v. Mansfield, 21 Vet. App. 505, 509 - 10 (2007) (expanding the holding in Fenderson v. West, 12 Vet. App. 119 (1999) of assigning staged ratings at the time of an initial rating based on facts found, to be applicable even in subsequent increased rating claims).  

6.  Entitlement to an increased rating for PTSD, rated 70 percent disabling

The Veteran’s PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 which uses a general rating formula for the evaluation of mental disorders.  Under 38 C.F.R. § 4.126 (a) and (b) consideration is given to the frequency, severity, and duration of psychiatric symptoms as well as the length and capacity for adjustment during periods of remission.  While consideration is given to the extent of social impairment, a psychiatric rating will not be assigned solely on the basis of social impairment.

A 70 percent rating contemplates 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.  

“VA did not include in the criteria for a 70% evaluation the risk of actual self-harm.  In fact, to the extent that risk of self-harm is expressly mentioned in § 4.130 at all, it is referenced in the criteria for a 100% evaluation as ‘persistent danger of hurting self, a symptom VA deemed to be typically associated with total occupational and social impairment.  38 C.F.R. § 4.130.”  However, VA adjudicators are not “absolutely prohibited from considering [] risk of self-harm in assessing [a] level of occupational and social impairment” but there must be a differentiation between suicidal ideation, which is generally indicative of a 70% evaluation, and a risk of self-harm, the persistent danger of which is generally indicative of a 100% evaluation.  Bankhead, slip op. at 12.

A total schedular rating of 100 percent is warranted when the disorder results in total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 

When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also consider how those symptoms impact a veteran’s occupational and social impairment.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Because the use of the term ‘such as’ in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating.  Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004).  Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be ‘due to’ those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d at 118.  

The United States Court of Appeals for the Federal Circuit (Federal Circuit) in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013), however, noted the "symptom-driven nature" of the General Rating Formula, observed that "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." 

The Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) was revised to the DSM-5 to remove consideration of Global Assessment of Functioning (GAF) scores.  In Golden v. Shulkin, No. 16-1208, slip op. at 1 (U.S. Vet. App. Feb. 23, 2018) the United States Court of Appeals for Veterans Claims (Court) addressed the question of “ whether the Board may use Global Assessment of Functioning (GAF) scores when assigning a disability rating for psychiatric claims where the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (2013) (DSM-5) applies” and held that it was error to use “GAF scores to assign a psychiatric rating in cases where the DSM-5 applies” (which is to appeals certified to the Board on or after August 4, 2014).  Golden, No. 16-1208, slip op. at 4 and 5 (U.S. Vet. App. Feb. 23, 2018).  Here, the appeal was certified for appellate review in January 2017 and the Veteran was notified of this by letter later that month.  Thus, the Veteran’s GAF score may not be considered. 

The Board must determine whether the weight of the evidence supports each claim or is in relative equipoise, with the appellant prevailing in either event.  However, if the weight of the evidence is against the appellant’s claim, the claim must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.7; Gilbert v. Derwinski 1 Vet. App. 49 (1990).  

Analysis

Although there is a medical opinion that the Veteran’s depressive symptoms are not part of his service-connected PTSD and not related to service or a service-connected disorder, for rating purposes the Board will consider all impairment from the Veteran’s nonservice-connected depressive symptoms to be part and parcel of the impairment from his service-connected PTSD because there is no rationale for doing otherwise.  

Thus, in this case, considering all impairment from all psychiatric disorders, a higher, 100 percent rating is not warranted in this case because the pathology due to PTSD does not more nearly approximated the total social and occupational impairment represented by the criteria for a 100 percent rating.  

The evidence prior to the recently submitted private evaluations of the Veteran do not show that the Veteran’s PTSD approximated the total social and occupational impairment.  The evidence does not suggest, much less establish, that he has had gross impairment in thought processes or communication; he has not been a persistent danger of hurting self or others.  The Board has considered the recent supporting statements of the Veteran’s wife and daughter as to his emotional lability, neglect of hygiene, and difficulty concentrating and with his memory.  This was also found by the private psychologist in March 2017.  At that time the private psychologist reported that the Veteran had intermittent inability to perform activities of daily living, including maintenance of hygiene and had overt hallucinations.  However, both the report of that private evaluation and the entire evidentiary record as a whole do not describe the nature, type or content of any putative hallucinations.  In fact, there is virtually no evidence of hallucinations, or delusions, anywhere else in the record.  Significantly, the private psychologist summarized the overall severity of the Veteran’s psychiatric disorder as causing occupational and social impairment with deficiencies in most areas, e.g., work, school, family relations, judgment, thinking and/or mood.  This description of the Veteran’s overall severity most closely approximates a 70 percent disability rating, and not the total occupational and social impairment required for a 100 percent schedular rating.  To the extent that the private psychologist also reported that the Veteran’s PTSD prevented participation in a competitive work environment and precluded gainful employment, such an opinion was directed to the claim for a TDIU rating, and while relevant to the claim for a rating in excess of 70 percent for PTSD, is not of such probative value as to outweigh the opinion of the 2015 VA examiner and the private psychologist’s conclusion that the disability more closely approximate the impairment encompassed by a 70 percent schedular disability rating. 

Accordingly, the Board finds that the preponderance of the evidence is against finding that the PTSD has warranted a 100 percent scheduler rating at any time since the Veteran filed his May 19, 2015, claim for an increased rating for his service-connected PTSD.  

7.  Entitlement to an effective date prior to May 19, 2015, for a 70 percent rating for PTSD

Effective March 24, 2015, a claimant for VA benefits must file a claim on the application form prescribed by the Secretary to be considered.  See Standard Claims and Appeals Forms final action at 79 Fed.Reg. 57,660 (Sept. 25, 2014).   The United States Court of Appeals for the Federal Circuit upheld the validity of the new regulations pertaining to the use of VA Forms for claims and appeals.  See Veterans Justice Group, LLC v. Secretary of Veterans Affairs, 818 F.3d. 1336 (Fed.Cir. 2016).  

This rulemaking also eliminates the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase or to reopen, under 38 C.F.R. § 3.157, while retaining the retroactive effective date assignment for awards for claims for increase which are filed on a standard form within 1 year of such hospitalization, examination, or treatment.  This final rule also implemented the concept of an intent to file a claim for benefits, which operates similarly to the current informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats.  79 Fed.Reg. 57660 (Sept. 25, 2014).  

This final rule further implemented a procedure to replace the non-standard informal claim process in 38 CFR § 3.155, by employing a standard form on which a claimant or his or her representative can file an ‘‘intent to file’’ a claim for benefits.  79 Fed.Reg. 57660 (Sept. 25, 2014).  

38 U.S.C.A. § 5110(b)(2) “provides an exception to the general rule in section 5110(a) - which, ‘[u]nless specifically provided otherwise in this chapter,’ precludes the award of an effective date prior to the date of application - insofar as section 5110(b)(2) allows a claimant to be awarded an effective date up to one year prior to the filing of his or her application for an increase if an increase to the next disability level is ascertainable and if a claim is received within one year thereafter.”  Hazan v. Gober, 10 Vet. App. 511, 520 (1997).  

In other words, the effective date of an increased rating is the date of ascertainable increase or date of receipt of claim, whichever is later, under 38 U.S.C.A. § 5110(a) and 38 C.F.R. § 3.400(o)(1); unless the ascertainable increase precedes receipt of the claim, in which case the effective date is the date of ascertainable increase if the claim is received within one year thereof under 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2).  Harper v. Brown, 10 Vet. App. 125, 126 (1997).  

As noted in Harper v. Brown, 10 Vet. App. 125, 126 (1997), 38 U.S.C.A. § 5110(b)(2) (West 1991) and 38 C.F.R. § 3.400(o)(2) are applicable only where the increase precedes the claim and are not applicable when a claim is filed and the increase in disability is subsequently ascertainable (as in Harper when the claim was filed first and increase was ascertained during subsequent VA hospitalization) (or by a VA examination after the claim is filed).  

The Board must identify the date of filing of the increased-rating claim and also determine when it was ‘factually ascertainable’ that an increase in disability occurred.  So, the range of possible dates starts one year before the claim was filed and ends on the date as of which it is factually ascertainable that an increased rating was warranted. 

Thus, the proper analysis is determining the earliest date that an increased rating was ‘ascertainable’ within the meaning of 38 U.S.C.A. § 5110(b)(2) and if ascertainable on a date within one year before receipt of the claim for such increase, the effective date should be the date of ascertainable increase.  Hazan v. Gober, 10 Vet. App. 511, 521 (1997).  

The term “factually ascertainable” in 38 C.F.R. § 3.400(o)(2) requires evidentiary showing.  

The Court has a “long established precedent providing that the ‘factually ascertainable’ language requires a showing of an actual increase in disability within the one year prior to filing of a claim.  See Harper [v. Brown, 10 Vet. App. 125, 126-27 (1997)]; Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (the relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim); Dalton v. Mansfield, 21 Vet. App. 23, 34-35 (2007) (question to be answered by the BVA is whether "an increase in disability occurred in the year prior to the application for TDIU").”  Santos v. Shinseki, No. 07-0586, slip op. at 3 (U.S. Vet. App. Nov. 26, 2008) (nonprecedential memorandum decision).  

Analysis

The Veteran did not appeal the October 2005 rating decision which denied service connection for PTSD and that decision is final.  Moreover, the Veteran’s is not seeking an earlier effective date for service connection for PTSD but an earlier effective date for the initial 70 percent rating for PTSD which was made effective as of the date of receipt of his reopened claim on May 19, 2015.  

Under governing law and regulations, the effective date for an initial disability rating cannot antedate the receipt of the application to reopen the claim for service connection for PTSD, which in this case was May 19, 2015.  

The Board has reviewed the record and during the time between the October 24, 2005, notification of the denial of the original claim for service connection for PTSD and the receipt of the application to reopen that claim on May 19, 2015, there is no communication from the Veteran or any representative which, even when viewed liberally, could be construed as an application to reopen the claim for service connection for PTSD. 

Accordingly, the proper effective date for the current 70 percent rating for PTSD has been properly set as of the date of receipt of the application to reopen that claim, on May 19, 2015, and entitlement to an effective date prior thereto is not warranted.  

Rating Criteria for Disabilities of the Feet

The RO has assigned a 10 percent disability rating on the basis of degenerative or osteoarthritis of the foot, under 38 C.F.R. § 4.71a, DC 5003, degenerative arthritis, which provides that degenerative arthritis is rated on the basis of limitation of motion under appropriate diagnostic codes for the specific joint or joints involved, but that when limitation of motion of the specific joint is noncompensable, a 10 percent rating is warranted for limitation of motion of a major joint or group of minor joints.  With X-ray evidence of arthritis of two or more joint groups without compensable limitation of motion a single disability evaluation of 10 percent may be assigned.  Where, however, the limitation of motion of a specific joint or joints involved is noncompensable under the code for rating based on limited motion, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  

Under Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) pain, by itself, does not constitute a functional loss warranting a higher rating under VA regulations that evaluate disability based upon range-of-motion loss in the musculoskeletal system; rather, “pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed coordination, and endurance in order to constitute functional loss.”  However, the regulatory provisions describing functional loss due to musculoskeletal disability, e.g., 38 C.F.R. §§ 4.40 (functional loss), 4.41 (History of injury), 4.45 (the Joints) , and 4.49 (Painful Motion), are intended to be used in understanding the nature of service-connected disabilities, after which a rating is determined based on explicitly listed rating criteria and the discussions of functional loss in the general regulatory provisions do not supersede requirements for a higher rating specified in schedule of ratings or provide a basis for a separate rating.  Thompson v. McDonald, 815 F.3d 781 (Fed.Cir. March 8, 2016).  The Court has also held that VA’s regulations pertaining to whether a compensable rating is warranted for pain (as shown by adequate pathology and evidenced by the visible behavior in undertaking motion), 38 C.F.R. §§ 4.40 and 4.59 apply regardless of whether the painful motion is related to arthritis.  Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).  Because Diagnostic Code (DC) 5003 (rating arthritis) requires that “satisfactory of evidence of pain” be “objectively confirmed,” a Veteran’s testimony, alone, is not enough.  For the minimum compensable rating for painful joint motion which is not actually limited to a compensable degree, a claimant’s bare statement is not satisfactory evidence of painful motion.  Petitti v. McDonald, 27 Vet. App. 415 (2015) (per curiam) (painful motion may be “objectively confirmed” by either a clinician, including a claimant’s assertion of painful joint motion that is confirmed by a clinician’s statement there is a history of "recurrent" joint pain or a layperson who witnessed the Veteran experience difficulty walking, standing, or sitting, or display a facial expression, such as wincing, indicative of pain).  In other words, satisfactory lay evidence includes lay descriptions from other than the Veteran of painful motion; lay observations of witnesses of painful motion, lay statements of observed visible behavior or facial expressions during painful motion, as well as lay reports of difficulty walking, standing, sitting, or undertaking other activity.  Petitti v. McDonald, 27 Vet. App. 415 (2015) (per curiam).  

38 C.F.R. § 4.71a, DC 5279 provides that for metatarsalgia, anterior (Morton’s disease), unilateral or bilateral, a 10 percent rating is warranted.  Under 38 C.F.R. § 4.71a, DC 5280, unilateral hallux valgus, a maximum rating of 10 percent is warranted when either operated with resection of the metatarsal head, or, if severe and equivalent to amputation of a great toe.  Under 38 C.F.R. § 4.71a, DC 5281, severe unilateral hallux rigidus is rated as severe hallux valgus but is not to be combined with a rating for pes cavus (claw foot, under DC 5278).  

DC 5283 provides malunion or nonunion of the tarsal or metatarsal bones warrants a 10 percent rating when moderate; 20 percent when moderately severe; and 30 percent when severe; DC 5284 provides that other foot injuries, and residuals thereof, when moderate warrant a 10 percent rating; when moderately severe a 20 percent rating is warranted; and when severe a 30 percent rating is warranted.  

The Veteran does not have pes planus (flat feet); weak feet (due to constitutional conditions, characterized by musculature atrophy, disturbed circulation, and weakness; pes cavus (claw foot); or hammertoes.  Thus, respectively, DCs 5276, 5277, 5278, 5282 are not potentially applicable.  

8.  Entitlement to a rating in excess of 10 percent for hallux valgus and osteoarthritis of the left foot, previously classified as status post (SP) arthroplasty of the left 5th toe

The current 10 percent rating is assigned based on past surgery of the left 5th toe and for hallux valgus of the left 1st (great) toe, for which he has not had surgery, with arthritis.  However, he does not have hammertoes of any of the toes of the left foot and, even if he did have hammertoe of either the left 1st or left 5th toes, or both, a rating in excess of 10 percent would not be warranted.  In this regard the 2015 VA examination found that his hallux valgus was only mild.  While he was found to have corns and callosities, the 2015 VA examiner found that these were new findings and unrelated to the service-connected disability.  Indeed, the examiner also found that the Veteran’s disability, while causing pain on movement and weight-bearing, did not compromise weight-bearing and the Veteran did not require the use of arch supports, orthotic inserts or shoe modifications.  His disabilities did not equate with amputation but the overall impact was that occupationally he would have difficulty with prolonged walking and standing.  However, this level of impairment is encompassed in the current 10 percent rating assigned.  See generally 38 C.F.R. § 4.45.  

Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for hallux valgus and osteoarthritis of the left foot, SP arthroplasty of the left 5th toe.  

9.  Entitlement to a compensable rating for residuals of excision of a keratoma of the plantar aspect of the right foot      DC 7819

A noncompensable rating has been assigned for residuals of excision of a keratoma of the plantar aspect of the right foot under 38 C.F.R. § 4.118, DC 7819 which provides for rating benign skin problems on the basis of disfigurement of the head, face, or neck; or on the basis of either scarring under DCs 7801, 7802, 7803, 7804, or 7805, or impairment of function.  

Under 38 C.F.R. § 4.118, Diagnostic Code 7801 scars not of the head, face, or neck from burns or other causes that are deep and nonlinear when involving an area of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrant a 10 percent rating.  Scars not of the head, face, or neck from burns or other causes that are deep and nonlinear when involving an area of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) warrant a 20 percent rating.  Scars not of the head, face, or neck from burns or other causes that are deep and nonlinear when involving an area of area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) warrant a 30 percent rating.  

Under 38 C.F.R. § 4.118, Diagnostic Code 7802 scars not of the head, face, or neck, from burns or other causes that are superficial and nonlinear involving an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent rating.  Under 38 C.F.R. § 4.118, Diagnostic Code 7804 one or more scars that are unstable or painful warrant a 10 percent rating.  Three or four scars that are unstable or painful warrant a 20 percent rating.  Five or more scars that are unstable or painful warrant a 30 percent rating.  Under DC 7805 a rating for any disabling effect(s) of a scar not considered in ratings under DCs 7800 through 7804 is to be assigned under an appropriate Diagnostic Code.  

Analysis

The Veteran has mild hallux valgus of the right foot but, as with the left foot, he does not have hammertoes of the right foot, and although he was found to have corns and callosities, the 2015 VA examiner found that these were new findings and unrelated to the service-connected disability.  

On the other hand, the 2015 VA examiner found that the Veteran had metatarsalgia of the right foot, but was unable to determine the cause.  As to this, in the past the Veteran had right foot drop following his prior stroke.  However, no right foot drop was found at the 2015 VA examination.  Thus, when the 2015 VA examiner stated that he was unable to determine the cause of the metatarsalgia, which affects only the right and not the left foot, it could not be determined that the metatarsalgia was attributable solely to the prior stroke, as opposed to residuals of his prior excision of a keratoma of the right foot.  Thus, the metatarsalgia will be considered part and parcel of the service-connected right foot disorder for rating purposes.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998) and Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the RO and the Board are precluded from differentiating between symptomatology attributed to different disabilities in the absence of medical evidence which does so).  

While the examiner did not find that there were any dermatological residuals, e.g., residual symptomatic scarring of the skin, the Veteran had pain on movement and weight-bearing, although this did not compromise weight-bearing and the Veteran did not require the use of arch supports, orthotic inserts or shoe modifications.  His disabilities did not equate with amputation but the overall impact was that occupationally he would have difficulty with prolonged walking and standing.  

In the judgment of the Board, this level of impairment warrants the assignment of no more than a 10 percent disability rating.  See generally 38 C.F.R. § 4.45.  In this regard, while the Veteran has metatarsalgia, he is not shown to have any nonunion or malunion of either the tarsal or metatarsalgia bones of the right foot and because the evidence does not show that there is any impairment of his station or gait, a rating in excess of 10 percent is not warranted.  

 
DEBORAH W. SINGLETON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Department of Veterans Affairs 

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