judge_norm: S B MAYS

condition: skin

text: Service connection for HIV is granted.

condition: psychiatric

condition: hypertension

text: This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

text:
Citation Nr: 1743000
Decision Date: 09/28/17    Archive Date: 10/10/17

DOCKET NO.  10-22 908	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina

THE ISSUES

1.  Whether there is clear and unmistakable error (CUE) in the October 2008 rating decision that assigned a September 28, 2007, effective date for the grant of a 60 percent rating for psoriasis.

2.  Whether there is CUE in a July 2000 rating decision that denied service connection for human immunodeficiency virus (HIV).

3.  Whether new and material evidence has been received to reopen the claim for service connection for HIV, and if so whether service connection is warranted.

4.  Whether new and material evidence has been received to reopen the claim for service connection for a psychiatric disability, and if so whether service connection is warranted.

5.  Entitlement to service connection for hypertension, to include as secondary to the service-connected psoriasis disability.

6.  Entitlement to service connection for a disorder manifested by dizzy spells, to include as secondary to the service-connected psoriasis disability.

7.  Entitlement to an increased rating in excess of 60 percent for psoriasis, to include on an extraschedular basis.

REPRESENTATION

Appellant represented by:	Clyde B. Gore, Attorney

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

R. Casadei, Counsel

INTRODUCTION

The Veteran served on active duty from September 1982 to February 1985.

This matter comes on appeal before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).

In a statement dated in October 2016, the Veteran withdrew any further appeal regarding the claims for (1) entitlement to compensation benefits under 38 U.S.C.A.
� 1151 for anemia; (2) entitlement to compensation benefits under 38 U.S.C.A.
� 1151 for blood transfusion; (3) entitlement to compensation benefits under
38 U.S.C.A. � 1151 for respiratory isolation; (4) entitlement to compensation benefits under 38 U.S.C.A. � 1151 for venous thrombosis; (5) entitlement to compensation benefits under 38 U.S.C.A. � 1151 for pulmonary embolism; (6) entitlement to an increased rating for diabetic nephropathy in excess of 60 percent; (7) entitlement to an effective date prior to September 20, 2011, for the grant of service connection for diabetic nephropathy; (8) entitlement to an increased rating in excess of 20 percent for type II diabetes mellitus; (9) entitlement to an effective date prior to September 20, 2011, for the grant of service connection for diabetes mellitus; (10) eentitlement to a total rating for compensation purposes based on individual unemployability; (11) entitlement to service connection for blood transfusion; and (12) entitlement to service connection for respiratory isolation.
Because these issues were withdrawn prior to certification to the Board, the withdrawal became effective when it was received by the RO.  38 C.F.R. � 20.204 (b)(3) (2016).  Therefore, these issues are not before the Board.

The Veteran testified before the undersigned in a May 2017 video-conference hearing, the transcript of which is included in the record.

Regarding the issue of whether there was CUE in the October 2008 rating decision that assigned a September 28, 2007 effective date for the grant of a 60 percent rating for psoriasis, the Board finds that this issue has been mischaracterized throughout the appeal period.  Specifically, in an August 2017 brief, the Veteran's representative outlined the arguments associated with the all the claims on appeal.  Essentially, the Veteran contends that a July 2003 rating decision (which denied a rating in excess of 10 percent for psoriasis) was CUE.  In other words, and as discussed in detail in the August 2017 representative's brief, the Veteran is not challenging the effective date of the 60 percent rating (assigned in the October 2008 rating decision); but instead, is challenging the 10 percent rating that was continued in the July 2003 rating decision.

Notably, neither the Veteran nor his representative has provided any argument as to why the September 28, 2007 effective date assigned in the October 2008 rating decision was clear and unmistakable error.  The Board notes that the effective date assigned in the October 2008 rating decision was based on the Veteran's first statement following the final July 2003 rating decision claiming an increase was warranted.  There have been no contentions that this date was improperly assigned.  Instead, the crux of the Veteran's argument is that the RO failed to consider the entire body of evidence at the time of the July 2003 rating decision, and therefore, improperly denied a rating in excess of 10 percent for psoriasis.  As such, the CUE argument is based on an improper rating in the July 2003 rating decision, and not an improper effective date assigned in the October 2008 rating decision.

Nonetheless, the issue of CUE in the July 2003 rating decision has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  As such, the Board does not have jurisdiction over it, and it is REFERRED to the AOJ for appropriate action.  38 C.F.R. � 19.9 (b) (2016).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2016).  38 U.S.C.A. � 7107(a)(2) (West 2014).

The issue of service connection for a disorder manifested by dizzy spells, to include as secondary to the service-connected psoriasis disability, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  The Veteran has not adequately set forth allegations of CUE in the October 2008 rating decision, the legal or factual basis for such allegations of error, or why the result would have been manifestly different but for the errors.

2.  In a July 2000 rating decision, the RO denied entitlement to service connection for HIV.

3.  The July 2000 rating decision that denied entitlement to service connection for HIV was based on the record and the law which existed at the time and did not involve undebatable error which, had it not been made, would have manifestly changed the outcome of the decision.

4.  In an unappealed July 2003 rating decision, the RO denied the claims for service connection for HIV and for a psychiatric disorder; the Veteran did not initiate an appeal and did not submit new and material evidence within one year; as such, the July 2003 rating decision became final.

5.  Evidence received since the final July 2003 rating decision relates to an unestablished fact necessary to substantiate the claims for service connection for HIV and for a psychiatric disability.

6.  The evidence of record is at least in equipoise as to whether the Veteran's HIV was incurred in service.

7.  The evidence weighs in favor of a finding that the Veteran's psychiatric disorder, diagnosed as body dysmorphic disorder with a mood disorder is related to his service-connected psoriasis disability.

8.  The evidence is in equipoise as to whether the Veteran's hypertension is secondary to the service-connected psoriasis disability.

9.  For the entire increased rating period on appeal, the Veteran's psoriasis has required constant or near-constant systemic therapy, and is assigned a 60 percent disability rating, which is the maximum schedular rating under Diagnostic Code 7816; the disability has not otherwise been manifested by disfigurement of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired set of features or with six or more characteristics of disfigurement.

CONCLUSIONS OF LAW

1.  The motion for CUE in the October 2008 rating decision that assigned a September 28, 2007 effective date for the grant of a 60 percent rating for psoriasis is dismissed without prejudice.  38 U.S.C.A. �� 5109A, 5121A (West 2014);
38 C.F.R. � 3.105 (a) (2016).

2.  The criteria for CUE in the July 2000 rating decision that denied service connection for HIV have not been met.  38 U.S.C. A . � 5109A (West 2014);
38 C.F.R. � 3.105 (a) (2016).

3.  The July 2003 rating decision that denied the claims for service connection for HIV and for a psychiatric disorder is final.  38 U.S.C.A. � 7105 (West 2014);
38 C.F.R. � 20.1103 (2016).

4.  New and material evidence has been received to reopen the service connection claim for HIV.  38 U.S.C.A. � 5108 (West 2014); 38 C.F.R. � 3.156 (2016).

5.  New and material evidence has been received to reopen the service connection claim for a psychiatric disorder.  38 U.S.C.A. � 5108 (West 2014); 38 C.F.R. � 3.156 (2016).

6.  The criteria to establish service connection for HIV have been met.  38 U.S.C.A. � 1131 (West 2014); 38 C.F.R. � 3.303, 3.304 (2016).

7.  The criteria to establish service connection for a psychiatric disorder, diagnosed as body dysmorphic disorder with a mood disorder, as secondary to the service-connected psoriasis disability have been met.  38 U.S.C.A. � 1131 (West 2014); 38 C.F.R. �� 3.102, 3.303, 3.310 (2016).

8.  The criteria to establish service connection for hypertension as secondary to the service-connected psoriasis disability have been met.  38 U.S.C.A. �� 1131, 5107(b) (West 2014); 38 C.F.R. �� 3.102, 3.303, 3.310 (2016).
9.  The criteria for a rating in excess of 60 percent for psoriasis, to include on an extraschedular basis, have not been met.  38 U.S.C.A. �� 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. �� 3.159, 3.321, 4.3, 4.7, 4.118, Diagnostic Code 7816 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

    CUE in October 2008 Rating Decision

As discussed in the Introduction section above, the Board finds that the issue of whether there is CUE in the October 2008 rating decision that assigned a September 28, 2007 effective date for the grant of a 60 percent rating for psoriasis is a mischaracterization of the Veteran's true contentions.

In an August 2017 statement, the Veteran's representative outlined the arguments associated with his CUE claim.  Essentially, the Veteran contends that the July 2003 rating decision (which continued a 10 percent rating for psoriasis) was based on clear and unmistakable error in denying a rating in excess of 10 percent.  In other words, the Veteran is not challenging the effective date of the 60 percent rating assigned in an October 2008 rating decision; but instead, is challenging the 10 percent rating that was continued in the July 2003 rating decision.

The Board has referred the proper CUE claim with respect to the July 2003 rating decision to the AOJ for initial consideration.

As to the certified CUE claim with the October 2008 rating decision on appeal, the Board finds that the statements submitted by the Veteran do not allege CUE with specificity.  He has not made any sufficiently specific allegation of impropriety, misapplication of law or regulations, or factual inaccuracy in the October 2008 rating decision.  Accordingly, the Board finds that the Veteran has not sufficiently made a valid claim of CUE in the October 2008 rating decision.  The Board will therefore dismiss that claim without prejudice.  See Hillyard v. Shinseki, 24 Vet. App. 343 (2011).

    CUE in HIV Claim Laws and Analysis

The Veteran asserts that there was CUE in a July 2000 rating decision that denied service connection for HIV.

The July 2000 rating decision is a final and binding determination.  After receiving notice of the July 2000 rating decision, the Veteran did not file a timely notice of disagreement; as such, the July 2000 decision is final.  38 U.S.C. A . � 7105 (West 2014); 38 C.F.R. �� 20.200, 20.1103 (2016).

A final and binding agency decision shall not be subject to revision on the same factual basis, except by duly constituted appellate authorities or except as provided in 38 C.F.R. � 3.105 and � 3.2600.

The section 3.105 exception allows for the revision of the decision in question on the grounds of CUE.  According to 38 C.F.R. � 3.105 (a), where the evidence establishes such error, the prior decision will be reversed or amended.  A rating or other adjudicative decision that constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision.  38 U.S.C. A . � 5109A; 38 C.F.R. � 3.105 (a).

The Court has established a three-prong test defining CUE, which is as follows:
(1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question.  See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 314 (1992).  "In order for there to be a valid claim of [CUE], . . . [t]he claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated."  Id. See also Eddy v. Brown, 9 Vet. App. 52, 54 (1996).  An asserted failure to evaluate and interpret correctly the evidence is not clear and unmistakable error.  See Damrel v. Brown, 6 Vet. App. 242, 245-246 (1994).

CUE is a very specific and rare kind of error.  It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.  Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, [CUE].  Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993).  The failure to fulfill the duty to assist also cannot constitute CUE.  Crippen v. Brown, 9 Vet. App. 412, 424 (1996).

The record in the appeal to be reviewed for CUE is the record and law that existed at the time of the prior rating decision, not additional evidence submitted or otherwise obtained after the fact.  A finding of CUE must be based solely on the evidence of record at the time of the decision in question.  See Russell v. Principi,
3 Vet. App. 310, 313-14 (1992).

The Board has reviewed the documents of record at the time of the July 2000 rating decision.

At that time, the record included two private medical opinions from Dr. Brennt and Dr. Rosenthal.  In a May 1998 statement, Dr. Brennt indicated that the Veteran tested positive for HIV in August 1993.  His initial CD4 count was 165, which was noted to be "consistent" with "advanced infection."  Moreover, Dr. Brennt stated that, given the Veteran's degree of "profound immunosuppression," it was "likely" that the Veteran had sustained his HIV infection "as long as 10 years before he had his initial HIV test in 1993."

In a June 1998 statement, Dr. Rosenthal indicated that the Veteran was diagnosed with HIV in 1993 with a CD4 count of 160.  Dr. Rosenthal stated that given his CD4 count, the Veteran "had clearly been infected for years."  Although it was indicated that one could never tell an individual patient exactly how long he had been infected based solely on CD4 at presentation, Dr. Rosenthal stated that it took about ten years on average for AIDS to develop after the initial infection.  Since most patients with an AIDS-defining illness had a CD4 count less than 200,
Dr. Rosenthal opined that "one can reasonably assume in [the Veteran's] case that in 1993 he had been infected for about a decade."  Moreover, Dr. Rosenthal stated that the development of severe psoriasis in 1982 may have been associated with HIV seroconversion prior to the emergence of the problems he had with psoriasis.  Dr. Rosenthal explained that severe psoriasis was well known to be an epiphenomenon of HIV and could occur very early in HIV disease.

The evidence at the time of the July 2000 rating decision also included a May 2000 VA medical opinion.  The examiner stated that an opinion as to when the Veteran obtained the HIV disease would be pure speculation.  Although the examiner stated that it was "possible" that the Veteran contracted HIV 10 years prior to his diagnosis, there were no usual complaints in service that would cause suspicion.

The Veteran maintains that the RO incorrectly applied the statutes of 38 U.S.C.A. � 5107 and 38 C.F.R. � 3.304 (b).  See August 2017 representative's brief.

Regarding 38 C.F.R. � 3.304 (b), there is no indication that the RO did not consider the Veteran sound at service entrance.  Instead, the RO initially denied the claim for service connection for HIV as the more probative evidence showed that the Veteran's HIV was not incurred in service or otherwise related to service.  The representative's argument outlined in the August 2017 brief regarding the misapplication of 38 C.F.R. � 3.304 is unclear to the Board.
As for 38 U.S.C.A. � 5107 (benefit-of-the-doubt doctrine), the Veteran's representative indicated that when there is an approximate balance of positive and negative evidence regarding the merits of a material issue, the claimant with be given the benefit of the doubt in resolving it.  Specifically, the Veteran's representative contends that the RO misapplied 38 U.S.C.A. � 5107 in that the evidence at the time of the July 2000 rating decision was at least in equipoise.  In this regard, the representative noted that there were two medical opinions weighing in favor of the claim and one weighing against the claim.

The Board finds that the Veteran's claim that the RO failed to apply the benefit-of-the-doubt doctrine in the July 2000 decision, is not an example of CUE.  Simply to allege CUE on the basis that previous adjudication improperly weighed and evaluated the evidence, or failed to apply the benefit-of-the-doubt doctrine, or failed to give reasons and bases, can never rise to the stringent definition of CUE.  "Broad-brush" allegations of "failure to follow the regulations" or "failure to give due process" are also insufficient.  Fugo v. Brown, 6 Vet. App. 40, 44 (1993). Consequently, this argument is not subject to CUE.

In other words, the Veteran's allegation of CUE challenges how the RO weighed and evaluated the facts before it in July 2000, which is in insufficient to establish CUE.  Thus, the Veteran has failed to show that the facts as known at the time of the July 2000 RO decision were undebatable or that 38 C.F.R. � 3.303 (b) was incorrectly applied.  The Board, therefore, must find that the Veteran cannot prevail on this allegation of CUE as it goes to the weight the RO gave to the evidence of record at the time of the July 2000 rating decision.  See Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).  Because the July 2000 rating decision that denied service connection for HIV does not contain CUE, the claim must be denied.

    New and Material -Laws and Analysis

The Veteran was initially denied service connection for HIV in a July 2000 rating decision.  Thereafter, the RO denied reopening the claim in April 2003 and July 2003 rating decisions.  The July 2003 rating decision also denied the claim for service connection for a psychiatric disorder because the evidence did not show that the Veteran had been diagnosed with a psychiatric condition.  The Veteran was notified of the July 2003 rating decision, but did not appeal the decision.  As such, the July 2003 rating decision became final.  38 U.S.C.A. � 7105; 38 C.F.R.
� 20.1103.

A claim will be reopened in the event that new and material evidence is presented. 38 U.S.C.A. � 5108.  Because the July 2003 rating decision was the last final disallowance, the Board must review all of the evidence submitted since that rating decision to determine whether the Veteran's claims for service connection should be reopened and re-adjudicated on a de novo basis.  Evans v. Brown, 9 Vet. App. 273 (1996).  If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim.  38 U.S.C.A. � 5108.

With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis.  First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is "new and material."  Second, if the Board determines that the evidence is "new and material," it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old.  Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).

Section 3.156(a) provides as follows: A claimant may reopen a finally adjudicated claim by submitting new and material evidence.  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 prior 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) (2016).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement.  Id at 118.

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

The evidence of record at the time of the July 2003 rating decision consisted of the Veteran's service treatment records and two private medical opinions from
Dr. B. and Dr. R.

The evidence received subsequent to the July 2003 rating decision includes, in pertinent part, an August 2017 statement from the Veteran's representative.  The August 2017 statement indicates that the Veteran emailed his representative and reported that he had unprotected sexual relations on at least two occasions during service.

Further, the evidence received after the July 2003 rating decision includes an August 2017 private Independent Medical Evaluation pertaining to the Veteran's psychiatric disorders.  The licensed psychologist (Dr. Tollison) opined that the Veteran had an Axis I diagnosis of body dysmorphic disorder (BDD) and a mood disorder that were related to his service-connected psoriasis disability.

The Board finds that this evidence is new and material within the meaning of applicable law and regulations because it is probative of the issues at hand.  The Veteran's statement and the April 2017 medical opinion are new as such evidence was not of record prior to the issuance of the July 2003 rating decision.  Moreover, the Veteran's statement and the April 2017 medical opinion are material as they relate to the unestablished element of a nexus between the Veteran's claimed disorder and service.  In this regard, the Veteran's assertion that he engaged in unprotected sex in service may serve as supportive evidence that he had risk factors of HIV in service.  Further, the April 2017 psychiatric evaluation provides a positive opinion as to how the Veteran's BDD and mood disorder is related to a service-connected disability.  As such, the Veteran's claims for service connection for HIV and a psychiatric disorder are reopened.

    Service Connection Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A.
� 1131; 38 C.F.R. � 3.303 (a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. � 3.303 (d).  Only chronic diseases listed under 38 C.F.R. � 3.309 (a) (2016) are entitled to the presumptive service connection provisions of 38 C.F.R. � 3.303 (b).  Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The U.S. Court of Appeals for Veterans Claims (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); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability.  See 38 C.F.R. � 3.310 (a).  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  See 38 C.F.R. � 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993).  The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).

In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).

A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran.  See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. � 5107 (b); 38 C.F.R. � 3.102.

As to adjudicating a claim for HIV and a psychiatric disability on the merits, in Bernard v. Brown, 4 Vet. App. 384, 392 (1993), the U.S. Court of Appeals for Veterans Claims (Court) held that claims reopen previously and finally denied claims, implicated both the question of whether there is new and material evidence to reopen the claim and the question of whether, upon such reopening, the claimant is entitled to the requested benefits.  Therefore, the "matter" over which the Board has jurisdiction under 38 U.S.C.A. � 7104 (a) is the claim of entitlement to VA benefits.  The Court held, however, that when the Board addresses in its decision a question that had not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby. Id.  at 394.

The Board finds that it may proceed with the adjudication of the reopened claims for service connection on the merits without prejudice to the Veteran.  The RO provided the Veteran notice as to the requirements for service connection, specifically what was missing from his claims.  The Veteran has presented evidence, to include lay evidence and medical evidence, and argument during the instant appeal addressing the merits of service connection for a HIV and a psychiatric disorder.  For these reasons, the Board finds no prejudice to the Veteran based on de novo review.

Service Connection Analysis for HIV

The Veteran maintains that he first contracted HIV in service.  In an August 2017 brief from the Veteran's representative, it was noted that the Veteran had emailed his representative after the May 2017 Board hearing and informed him that he had unprotected sexual relations on at least two occasion during service.   The Board notes that the Veteran denied having had any HIV risk factors in service during the May 2017 hearing.  However, as discussed during the hearing, the Board recognizes that the topic of conversation regarding HIV risk factors is uncomfortable to some individuals.  As such, the Board finds that the Veteran's statements, made to his representative in a more private setting, are credible and probative.

Moreover, although service records are negative for any complaints, diagnoses, or treatment for HIV, the Board finds that the evidence currently of record is at least in equipoise as to whether the Veteran first contracted HIV in service.

Weighing in favor of the claim are two private medical opinions from Dr. B. and Dr. R.  In a May 1998 statement, Dr. B. indicated that the Veteran tested positive for HIV in August 1993.  His initial CD4 count was 165, which was noted to be "consistent" with "advanced infection."  Moreover, Dr. B. stated that, given the Veteran's degree of "profound immunosuppression, it was "likely" that the Veteran had sustained his HIV infection "as long as 10 years before he had his initial HIV test in 1993."

In a June 1998 statement, Dr. R. also indicated that the Veteran was diagnosed with HIV in 1993 with a CD4 count of 160.  Dr. R. stated that given his CD4 count, the Veteran "had clearly been infected for years."  Although it was indicated that one could never tell an individual patient exactly how long he had been infected based solely on CD4 at presentation, Dr. R. stated that it took about ten years on average for AIDS to develop after the initial infection.  Since most patients with an AIDS-defining illness had a CD4 count less than 200, Dr. R. opined that "one can reasonably assume in [the Veteran's] s case that in 1993 he had been infected for about a decade."  Moreover, Dr. R. stated that the development of severe psoriasis in 1982 may have been associated with HIV seroconversion prior to the emergence of the problems he had with psoriasis.  Dr. R. explained that severe psoriasis was well known to be an epiphenomenon of HIV and could occur very early in HIV disease.

The evidence weighing against the claim includes a May 2000 VA medical opinion.  The examiner stated that an opinion as to when the Veteran obtained the HIV disease would be pure speculation.  Although the examiner stated that it was "possible" that the Veteran contracted HIV 10 years prior to his diagnosis, there were no usual complaints in service that would cause suspicion.

The Board finds the May 2000 VA medical opinion to be of reduced probative value.  In this regard, Dr. R. stated that severe psoriasis was well known to be an epiphenomenon of HIV and could occur very early in HIV disease.  The VA examiner did not discuss why the Veteran's psoriasis (noted in service) was not one of the "usual complaints" associated with HIV.

 The remaining evidence has been reviewed by the Board, but it does not contain an opinion as to the etiology of the Veteran's HIV.

Upon review of all the evidence of record, the Board finds that there is evidence weighing both for and against the claim for service connection for HIV.  In other words, the Board finds that the weight of the evidence is at least in equipoise as to whether the Veteran's HIV was first incurred in service.  Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for HIV have been met.  38 U.S.C.A. � 5107 (b); 38 C.F.R. � 4.3.

Service Connection Analysis for a Psychiatric Disorder

The Veteran maintains that he has a psychiatric disorder that is related to his service-connected psoriasis disability.  Given the favorable nature of the Board's decision on a secondary basis, the Board will not address the theory of direct service connection.

The Board notes that the Veteran is currently service connected for psoriasis and is in receipt of the maximum (60 percent) schedular rating for this disability.

The evidence includes an August 2011 VA psychiatric examination.  The examiner opined that the Veteran did not meet the criteria for a mental disorder.

VA treatment records show that the Veteran has been diagnosed with a mood disorder and depressive disorder with Axis III as including psoriasis.  See November 2011, April 2012, May 2012, June 2012, July 2012, and August 2012 VA mental health notes (in Virtual VA).

The Veteran has submitted an August 2017 private Independent Medical Evaluation from a licensed psychologist, Dr. T.  The Board notes that the evaluation was provided after a review of the claims file and a thorough discussion of VA and private treatment records.  Dr. T. indicated that service records showed that the Veteran was treated for depression, suicidal ideation, psoriasis, and anxiety during service.  Following service, the Veteran was continued to be treated for psoriasis and, in 1987, it was reported that it covered 30-40 percent of his body.
Dr. T. noted a November 2002 letter, the Veteran reported mental and physical damage as a result of coping with psoriasis.  This included low self-esteem, anxiety, anger, embarrassment, depression, and intense isolation.

Dr. T. indicated that the Veteran's onset of psoriasis in service demonstrated a significant psychiatric response to body image produced by widespread plaques.  His symptoms included depression, anxiety, isolation, withdrawal, loneliness, and suicidal ideation.  Based on the overall records, Dr. T. opined that the Veteran suffered from Body Dysmorphic Disorder with a mood disorder.  This DSM disorder was noted to be characterized by distressing or impairing preoccupation with slight or imagined defects in one's physical appearance.

Upon review of all evidence of record, the Board finds that the weight of the evidence supports the claim that the Veteran's psychiatric disorder, diagnosed as BDD with mood disorder is secondary to his service-connected psoriasis disability.  Resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for a psychiatric disorder is warranted.  38 U.S.C.A. � 5107 (b); 38 C.F.R. � 3.102.

Service Connection Analysis for Hypertension

The Veteran also maintains that he has hypertension that is related to his service-connected psoriasis disability.

Service treatment records include a November 1983 Report of Medical Examination, conducted for the Veteran's application to the Boost Program.  At that time, the Veteran was noted to have several small patches of psoriasis.  His blood pressure at the time of examination was 138/78.  In a November 1983 Report of Medical History, the Veteran specifically denied having high or low blood pressure.  In an April 1983 treatment record, the Veteran's blood pressure was 118/62 and in March 1984 it was 146/80.  A narrative report dated in May 1984 shows blood pressure reading of 116/70.
In a June 1984 treatment record, the Veteran was seen for his overseas screening and his blood pressure was noted as 120/80.  A July 1984 statement from the Naval Hospital in Bethesda indicates that the Veteran was to be returned to limited duty for a period of six months due to his psoriasis to an area with dermatological services; there was no indication that the Veteran had been treated or diagnosed with hypertension.  A July 1984 Report of Medical Board from the Naval Hospital indicates that a physical examination revealed "all findings within normal limits," except for psoriatic plaques.  Laboratory studies were also within normal limits.  In a February 1985 treatment record, the Veteran's blood pressure was 118/60.

A post-service January 1990 Fee Evaluation Examination reflects that the Veteran's blood pressure was 120/84.

The Veteran was also afforded a VA examination in July 2012 where the examiner stated that the first evidence of record showing a diagnosis of hypertension was in 2001, although there were elevated blood pressure readings since 1999.  The examiner further discussed relevant medical literature, which was noted to be "conflicting."  Specifically, the examiner cited a medical article, which found that "psoriatic patients have an increased risk of developing metabolic syndrome and
hypertension in comparison to nonpsoriatic patients."  Further, the data showed that psoriatic patients were at 2. 2 times higher risk for developing hypertension than nonpsoriatic patients.  In contrast there were some studies that were in conflict.  For example, two studies failed to find a relationship between psoriasis and hypertension.  It was noted that more studies needed to be conducted to find the impact on psoriasis and hypertension.  Based on this medical literature, the VA examiner opined that the literature remained conflicting and unclear and therefore psoriasis could not be considered an independent risk factor for development of hypertension.  It was further noted that the Veteran's obesity was at least as likely as not a major role in the development of the Veteran's hypertension.

The Board finds that, although the July 2012 VA examiner provided a negative nexus opinion, the medical literature that he included with the opinion discusses in the examination report places the evidence at least in equipoise as to whether the Veteran's hypertension is secondary to the service-connected psoriasis.  In other words, there is medical literature weighing both in favor and against a relationship between psoriasis and hypertension.   Accordingly, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for hypertension as secondary to the service-connected psoriasis disability is warranted.  38 C.F.R. � 3.102.

Legal Criteria and Analysis for Psoriasis Disability

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. � 1155; 38 C.F.R., Part 4 (2016).  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. � 4.1 (2016).
The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. �� 4.1, 4.2, 4.10.

Where there is a question as to which of two disability ratings shall be applied, the higher rating is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.
38 C.F.R. � 4.7.

Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern, including the appropriateness of staged ratings whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Francisco v. Brown,
7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (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.  Id.

The Board has reviewed all the evidence in the Veteran's electronic file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

Service connection for psoriasis was granted in a March 1985 rating decision.  The RO assigned a 10 percent rating at that time.  The Veteran filed a claim for an increased rating in April 15, 2008, and in an October 2008 rating decision, the RO increased the disability rating for psoriasis to 60 percent, effective September 28, 2007.

Psoriasis is to be rated either under Diagnostic Code 7816 or as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability.

38 C.F.R. � 4.118, Diagnostic Codes 7800-7805 were amended, effective October 23, 2008.  As the Veteran's claim was received in April 2008, consideration of the appropriateness of an evaluation under Diagnostic Codes 7800-7805 will include consideration of both the pre- and post-2008 regulations.

Diagnostic Code 7816 (old and new) provides for evaluations ranging from 0 percent to 60 percent based on either the percentage of the entire body or of exposed areas affected or on the need for systemic therapy.  A 60 percent evaluation, the maximum evaluation under Diagnostic Code 7816, is warranted for more than 40 percent of the entire boy or more than 40 percent of the exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period.
38 C.F.R. � 4.118, Diagnostic Code 7816.

For the entire increased rating period on appeal, the Veteran is receiving the maximum allowable schedular disability rating under Diagnostic Code 7816; therefore, a higher schedular rating for the service-connected psoriasis may not be granted under Diagnostic Code 7816 regardless of how much of the body it covers. Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). Accordingly, the appeal for an increased rating pursuant to Diagnostic Code 7816 is not warranted.

The Board must consider whether the Veteran may receive a higher rating under Diagnostic Codes 7800-7805, as referenced above.  Of these, only Diagnostic Code 7800 allows for an evaluation higher than 60 percent.
The Board notes that the October 23, 2008, revisions made no substantive changes to Diagnostic Code 7800.  The revisions added Note (4) (which clarified that ratings under Diagnostic Code 7800 should separately evaluate disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, under the appropriate diagnostic code(s) and apply 38 C.F.R. � 4.25 to combine the evaluation(s) with the evaluation assigned) and Note (5) (which clarified that the characteristic(s) of disfigurement may be caused by one scar or by multiple scars and that the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation).

Under Diagnostic Code 7800, an 80 percent rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement.

The eight characteristics of disfigurement as follows: (1) a scar 5 or more inches
(13 or more cm.) in length; (2) scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding six square inches (39-sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.);
(7) underlying soft tissue missing in an area exceeding six square inches (39-sq. cm.); and (8) skin indurated and inflexible in an area exceeding six square inches (39-sq. cm.).  See 38 C.F.R. � 4.118, Diagnostic Code 7800, Note (1) (2016).

During the June 2008 VA skin examination, it was noted that the Veteran's psoriasis affected 5 percent but less than 20 percent of exposed areas (i. e., head, face, neck).  He was noted to have hyper-pigmented patches covering 80 percent of his total body surface.

In the April 2011 VA examination, the examiner noted that the Veteran had hypopigmentation on his legs, back, chest, groin, and neck.  The post-inflammatory hypopigmentation was noted to cover 80 percent of his total body surface, with 5 percent of exposed skin.

Although the Veteran has been found to have hypopigmentation on his exposed areas, the evidence does not reflect that the Veteran's service-connected psoriasis disability causes visible or palpable tissue loss or either gross distortion or asymmetry of three or more features or paired sets of features or that it results in six or more characteristics of disfigurement.  As such, an 80 percent disability rating based on disfigurement of the head, face or neck (DC 7800) is not warranted.

Further, under Diagnostic Code 7817 for exfoliative dermatitis (erythroderma), a rating of 100 percent is warranted for generalized involvement of the skin, plus systemic manifestations (such as fever, weight loss, and hypoproteinemia), and constant or near-constant systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoid, psoralen with long-wave ultraviolet-A light (PUVA) or ultraviolet-B light (UVB) treatments, or electron beam therapy required during the past 12-month period.  38 C.F.R. � 4.118, Diagnostic Code 7817.  Although the June 2008 VA examiner indicated that the Veteran used periodic UVB treatment, the evidence does not show that the Veteran's psoriasis has been manifested by systemic manifestations (such as fever, weight loss, and hypoproteinemia).  During the April 2011 VA examination, the Veteran denied fevers, weight loss, and malignant neoplasm.  As such, Diagnostic Code 7817 does not allow the Veteran a higher rating.

For these reasons, the Board finds that a schedular rating in excess of 60 percent for the service-connected psoriasis disability is not warranted.

In an August 2017 statement, the Veteran's representative raised the issue of a higher rating for psoriasis on an extraschedular basis.  As such, the Board will consider whether referral for an extraschedular evaluation is warranted.

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. � 3.321 (2016).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the Rating Schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R.
� 3.321(b)(1) (related factors included "marked interference with employment" and "frequent periods of hospitalization").  When the Rating Schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.  Id.

Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran's psoriasis disability are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required.  Diagnostic Code 7816 (old and new) provides for evaluations ranging from 0 percent to 60 percent based on either the percentage of the entire body or of exposed areas affected or on the need for systemic therapy.  The Veteran's currently assigned 60 percent rating contemplates psoriasis with more than 40 percent of the entire body or more than 40 percent of the exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period.
In the August 2017 brief, the Veteran's representative indicated that the Board should consider how difficult it had been for the Veteran to "control and treat his psoriasis."  It was noted that the schedular 60 percent rating did not contemplate the Veteran's level of disability, to include his symptoms of itching, daily use of creams and topical steroids, and loss of sleep.  The Board disagrees.

In this regard, the Board finds that the Veteran's symptoms of itching and lack of sleep due to the itching are adequately contemplated by DC 7816.  Specifically, DC 7816 contemplates psoriasis that involves more than 40 percent of the entire body area affected.  The term "affected" would reasonably include symptoms associated with psoriasis, which generally would encompass itchy skin and a loss of sleep due to itching.  Moreover, the Board notes that the Veteran has been diagnosed with sleep apnea, which may explain the Veteran's sleep impairment.  Further, the treatment the Veteran has described regarding the extensive use of medications is adequately considered by DC 7816 (i. e., "constant or near-constant" systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period.).

The Board acknowledges the impact that the Veteran's psoriasis has had on his life.  He testified that his psoriasis is all-consuming.  Although sympathetic to the Veteran's claim, the Board finds that the symptomatology and impairments caused by the Veteran's psoriasis disability are specifically contemplated by the schedular rating criteria.  Accordingly, the first step of the extraschedular inquiry is not satisfied.  See Thun, 22 Vet. App. at 114.  In the absence of this threshold finding, there is no need to consider the second step of the inquiry, namely whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization.  See id. at 118-19 (holding that the Board's "threshold" finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment).

Further, according to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. � 3.321 (b)] for referral for an extraschedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations."  Referral for an extraschedular rating under 38 C.F.R. � 3.321 (b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities.

The Veteran has not asserted, and the evidence of record has not suggested, any combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate.  As such, the Board finds that the Rating Schedule is adequate to evaluate the Veteran's current disabilities and symptomatology.

Therefore, in the absence of exceptional factors, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R.
� 3.321(b)(1) are not met.  Thun, 22 Vet. App. at 115-16; Johnson, 762 F.3d 1362; Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

ORDER

The CUE challenge to the October 2008 rating decision that assigned a September 28, 2007, effective date for the award of a 60 percent rating for psoriasis is dismissed without prejudice.

The request to revise the July 2000 rating decision on the basis of CUE, for failure to grant service connection for HIV, is denied.

New and material evidence having been received, the claims for service connection for HIV and a psychiatric disorder are reopened.

Service connection for HIV is granted.

Service connection for a psychiatric disorder, diagnosed as body dysmorphic disorder with a mood disorder, as secondary to the service-connected psoriasis disability, is granted.

Service connection for hypertension as secondary to the service-connected psoriasis disability is granted.

An increased rating in excess of 60 percent for psoriasis, to include on an extraschedular basis, is denied.

REMAND

The Veteran also maintains that he has experienced dizzy spells since service.  The Board also notes that the evidence suggests some possibility that the Veteran's dizziness is related to medication prescribed for his service-connected psoriasis.

The evidence includes an August 2010 VA treatment record where the Veteran complained of dizziness for a week.  He was diagnosed with a possible inner ear infection and given medication for 10 days.

In a September 2011 VA treatment record, it was noted that the Veteran's dizzy spells were getting worse.  An etiology opinion as to the source of the Veteran's dizziness was not provided.

Numerous VA treatment records show that the Veteran has been prescribed Diphenhydramine for his itchy skin.  Side effects of this medication are noted to include drowsiness and dizziness.

In light of the lay and medical evidence in this case, the Veteran should be afforded a VA examination to assist in determining the etiology of his claimed dizzy spells.

Accordingly, the case is REMANDED for the following actions:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c).  Expedited handling is requested.)

1.  Schedule the Veteran for an examination by an appropriate VA examiner to determine the nature, extent and etiology of his claimed dizzy spells.  The electronic claims file must be made available to the individual designated to provide the opinion.  The examiner is then asked to address the following:

(a)  Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's dizzy spells are causally related to the Veteran's active duty.

(b)  Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's dizzy spells are caused or aggravated by a service-connected disability, including service-connected psoriasis disability or medication used to treat any service-connected disability.

A complete rationale for any opinion expressed should be included in the examination report.

2.  Then readjudicate the claim.  If the benefit sought on appeal remains denied, the Veteran and his attorney should be furnished with a supplemental statement of the case and be given the opportunity to respond.  Thereafter, the case should then be returned to the Board for further appellate consideration, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West 2014).

______________________________________________
S. B. MAYS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: NATHANIEL J DOAN

disposition: dismissed

condition: knee

disposition: granted

text:
Citation Nr: 1801000
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  11-03 832	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a bilateral knee disability.

2.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

REPRESENTATION

Veteran represented by:	Charles D. Romo, Attorney at Law

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

J. L. Burroughs, Associate Counsel

INTRODUCTION

The Veteran served on active duty from January 1978 to February 1993.

These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2009 and January 2010 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Houston, Texas.  Jurisdiction now resides with the St. Petersburg, Florida RO.

The Veteran testified before the undersigned Veterans Law Judge in a Board videoconference hearing in September 2017.  A transcript of his testimony is of record.  At the time of this hearing, prior to Board jurisdiction, the Veteran withdrew his above listed pending claim for bilateral knee disabilities.

FINDINGS OF FACT

1.  In testimony at his Board videoconference hearing in September 2017, the Veteran withdrew the issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for a bilateral knee disability.

2.  The Veteran has PTSD that is as likely as not related to his military service.

CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a Substantive Appeal on the issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for a bilateral knee disability, by the Veteran have been met and the appeal is withdrawn.  38 U.S.C. � 7105 (b)(2), (d)(5) (2002); 38 C.F.R. � 20.204 (2017).

2.  The criteria for service connection for PTSD have been met.  38 U.S.C. � 1101, 1131, 5107 (2002); 38 C.F.R. � 3.102, 3.303, 3.304 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Dismissed Appeal

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. � 7105 (2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. � 20.204 (2017).  Withdrawal may be made by the appellant or by his or her authorized representative, and except where withdrawn on record at a hearing, must be in writing.  38 C.F.R. � 20.204.

With regard to the appeal of whether new and material evidence has been received to reopen a claim for entitlement to service connection for a bilateral knee disability, the issue was withdrawn on record by the Veteran at his Board videoconference hearing in September 2017.  Transcript at p. 2.  The Veteran's oral statement during his hearing, memorialized in writing in the transcript, satisfies the requirements for the withdrawal of a substantive appeal.  See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993).  There remain no allegations of errors of fact or law for appellate consideration, as to that issue.  Accordingly, as to the issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for a bilateral knee disability, the Board does not have jurisdiction to review the appeal and it is dismissed.

Service Connection

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C. � 5103, 5103A; 38 C.F.R. � 3.159, 3.326(a).  The claim for service connection for PTSD has been granted herein.  Any error related to the duties to notify and assist is moot for these issues.

Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor.  38 C.F.R. � 3.304 (f).

If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. � 3.304 (f)(3).

For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.  38 C.F.R.� 3.304 (f)(3).

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  38 U.S.C. � 5107 (2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. � 3.102.
The contention liberally construed for the Veteran is that his claimed PTSD is related to active service.  See Board Hearing Transcript.  Specifically, he reports that his bases while stationed in Saudi Arabia and Kuwait during Desert Storm were repeatedly under fire from SCUD missile attacks.  These attacks caused him to continuously run for cover out of fear for his safety.  He also reports seeing dead bodies and mass "destruction of property."  Since these incidents he contends experiencing intrusive thoughts, night sweats, nightmares, isolation, and anger.    See January 2010 Galveston OPC MH Psychiatric Assessment Note and September 2017 Board Hearing Transcript.  In turn, he asserts that these symptoms, and his currently diagnosed PTSD, are due to these in-service stressors.

Turning to the record, the Board finds that the weight of the evidence is at least in equipoise as to whether the Veteran has a current diagnosis of PTSD.  At a VA examination in May 2012, the VA examiner assessed that the Veteran did not meet the diagnostic criteria for PTSD.  However, VA treatment records dated throughout the appeal period note multiple DSM compliant diagnoses of PTSD.  See e.g., January 2010, April 2011, May 2017 VA treatment records.  Based on the above, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran has a current diagnosis of PTSD.  38 U.S.C. � 5107 (b); 38 C.F.R. � 3.102.

The Board will concede his reported stressor of witnessing SCUD missile attacks while deployed in the Persian Gulf.  In the instant case, the Veteran is competent to report witnessing a SCUD missile that landed nearby and the events that occurred afterwards.  Furthermore, his DD Form 214 and personnel records specifically document Persian Gulf service and receipt of a Southwest Asia service medal with three bronze stars and Kuwait liberation-Saudi Arabia medal.  In light of the record, the Board finds that the Veteran's report of witnessing a SCUD missile is consistent with the places, types, and circumstances of his service.  See 38 C.F.R. � 3.304 (f)(3).

Given the above, the remaining question is whether there is medical evidence of a link between current symptoms and a specific claimed in-service stressor.  In January 2010 VA psychologist Dr. D. T. diagnosed PTSD.  Prior to diagnosis, Dr. T. conducted a detailed psychiatric evaluation wherein the Veteran's reported exposure to SCUD missile attacks was characterized as a "traumatic" experience.  Thereafter, in a follow up April 2011 consultation, Dr. T. confirmed that the Veteran's PTSD symptomatology was related to his Desert Storm experiences, particularly his exposure to SCUD missiles.  See MH Clinic Note.

In sum, the Veteran has a current diagnosis of PTSD.  Additionally, a VA psychologist has opined that the currently diagnosed PTSD is related to the conceded in-service stressor.  For these reasons, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for PTSD have been met.  38 U.S.C. � 5107 (b); 38 C.F.R. � 3.102.

ORDER

The appeal of whether new and material evidence has been received to reopen a claim for entitlement to service connection for a bilateral knee disability is dismissed.

Entitlement to service connection for PTSD is granted.

____________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: DAVID L WIGHT

disposition: denied

condition: erectile

text:
Citation Nr: 1802000
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  10-35 517	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas

THE ISSUE

Entitlement to service connection for erectile dysfunction (ED), to include as secondary to service-connected epididymitis.

REPRESENTATION

Appellant represented by:	Texas Veterans Commission

ATTORNEY FOR THE BOARD

Michael J. O'Connor, Associate Counsel

INTRODUCTION

The Veteran served on active duty from January 1974 to August 1982.

This matter comes before the Board of Veterans' Appeal (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The Board remanded this appeal in April 2015 for further development. Specifically, the Board remanded this appeal to the RO for a medical examination to determine whether the Veteran's current condition of ED is related to his service or his service-connected epididymitis. This opinion has been completed and associated with the claims file.

The Board again remanded this appeal in December 2016 for further development. Specifically, the Board remanded this appeal to the RO to obtain an addendum medical opinion as to whether the Veteran's condition was worsened or aggravated beyond the natural course of his condition as the result of his service-connected epididymitis. This addendum opinion has been completed and associated with the claims file.

FINDINGS OF FACT

1.  Erectile dysfunction was not present during the Veteran's active service or for many years thereafter.

2.  The evidence does not show that the Veteran's post-service erectile dysfunction is causally related to his active service or any incident therein, or causally related to or aggravated by any service-connected disability.

CONCLUSION OF LAW

Erectile dysfunction was not incurred in active service, may not be presumed to have been incurred in active service, and is not causally related to or aggravated by a service-connected disability. 38 U.S.C.A. �� 1101, 1110, 1112, 1116, 5107 (West 2016); 38 C.F.R. �� 3.303, 3.307, 3.309, 3.310 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. �� 5100, 5102, 5103A, 5107, 5126 (West 2016) provides VA's duties to notify and assist a claimant with development of a claim for compensation.  See also, 38 C.F.R. �� 3.102, 3.159 and 3.326 (2015).

As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the Veteran under the VCAA.

VA's duty to notify was satisfied by February 2013 letter and several statements of the case. 38 U.S.C.A. �� 5102, 5103, 5103A (West 2016); 38 C.F.R. � 3.159 (2015); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

VA also has a duty to assist a Veteran in the development of the claims. That duty includes assisting the Veteran in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159.

With respect to VA's duty to assist, the Board also finds that VA has undertaken all necessary development action. 38 U.S.C.A. � 5103A (West 2016); 38 C.F.R. � 3.159 (2015). Neither the Veteran nor his attorney has argued otherwise.

The record shows that VA has obtained the Veteran's complete service treatment and personnel records, as well as all available and relevant post-service clinical records which the Veteran has specifically identified and authorized VA to obtain. 38 U.S.C.A. � 5103A(c) (West 2016); 38 C.F.R. � 3.159(c)(2), (3) (2015).

The Veteran has also been afforded a VA medical examination in connection with his claim for service connection for erectile dysfunction. 38 C.F.R. � 3.159(c) (4) (2017). The Board finds that the examination report, together with the other evidence of record, contains the necessary findings upon which to decide this issue. See Massey v. Brown, 7 Vet. App. 204 (1994) (holding that VA medical examination reports must provide sufficient reference to the pertinent schedular criteria). The Board also notes that the record does not show, nor has the Veteran contended, that his service-connected erectile dysfunction has increased in severity or otherwise materially changed since the most recent examination was conducted. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007).

The Board finds that all necessary development as to the issue decided herein has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993).

Applicable Law

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. �� 1110, 1131 (West 2014); 38 C.F.R. � 3.303 (2015). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. � 3.303(d) (2015).

Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. � 3.310(a) (2015). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. � 3.310(a).

Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. � 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Service connection for erectile dysfunction (ED)

The Veteran reports an in service accident in which he damaged his testicle. He reports that he hit his testicles on a rail while exiting a bunker during a field exercise. He was taken to the hospital and treated. He was diagnosed with traumatic epididymitis. The Veteran seeks service connection for erectile dysfunction, to include as secondary to this service-connected injury. After carefully considering the Veteran's contentions in light of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim.

With regard to granting service connection on a direct basis for erectile dysfunction, there is no medical evidence or lay evidence of record reflecting that the Veteran had erectile dysfunction in service, and no competent opinion has related current diagnoses of such a disability to service. The Board has reviewed the Veteran's service treatment records, and have found no evidence of in-service complaints of erectile dysfunction. While the Veteran's service treatment records detail his treatment for traumatic epididymitis, the records do not note any complaints of erectile dysfunction in service.

In a May 2007 treatment note, the treating physician noted that the Veteran had erectile dysfunction "for the last 1-2 years," and described it as "partial" and lasting only 5 minutes.

In a March 2010 treatment note, the treating physician noted that the Veteran complained that his "erections are not as good as it used to be for the past couple of years."

In a March 2012 treatment note, the treating physician noted that the Veteran stated that he has had "ED for the past 15 years and getting progressively worse."

The records, taken in their entirety and in the light most favorable to the Veteran, indicate that the onset of the Veteran's symptoms occurred more than 15 years after service.

Additionally, the Veteran has not described a continuity of relevant symptomatology since service, nor has he indicated that this disability is due directly to his active duty service. Further, he did not date his symptoms pertaining to these claimed disabilities back to service. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). As such, service connection cannot be granted on a direct basis for these claimed disabilities.

With regard to granting service connection on a secondary basis, the evidence of record does not support such a grant. The evidence established that that the Veteran had an in-service injury to his testicles. However, the basis of this appeal is whether such an injury could cause the Veteran's currently diagnosed erectile dysfunction.

In July 2014, the Veteran underwent a VA examination to determine the etiology of his claimed erectile dysfunction. The examiner found that the Veteran's erectile dysfunction was related to his diabetes mellitus. However, the examiner did not provide a rationale for this finding, nor did he address the issue of whether the condition was related to the Veteran's epididymitis.

In a subsequent February 2016 VA examination, the examiner opined that "The Veteran's current erectile dysfunction is less likely than not related to any incident of service, to include post traumatic epididymitis. The ED started around 2005 as per VA medical records (note on 5/7/2007). This is 20+ years after release from service.  Also, erectile dysfunction is not a common complication of epididymitis. Thus, based on the time of diagnosis and rarity of this complication, the Veteran's current erectile dysfunction is less likely than not related to any incident of service." See VA Examination, dated February 4, 2016.

In an October 2017 VA examination, a medical examiner offered an addendum opinion regarding the etiology of the Veteran's erectile dysfunction. The examiner opined that based on review of the Veteran's electronic folder, previous examinations and the literature, it is less likely than not that his erectile dysfunction has been permanently worsened beyond the normal progression (versus temporary flare-up of symptoms) as a result of the current residuals of the service-connected epididymitis. The examiner added that epididymitis doesn't permanently worsen ED based on review of the literature. See VA Examination, dated October 12, 2017.

The Board finds this medical evidence to be highly probative in adjudicating this appeal. The Board finds that this evidence, including the Veteran's service and post-service treatment records and VA examinations, demonstrates that the condition had its onset many years after service. The evidence also indicates that the Veteran's in-service injury did not result in any complaints of erectile dysfunction. Furthermore, the February 2016 examination, with the October 2017 addendum, provides opine with a sound rationale and supporting evidence indicating that the Veteran's erectile dysfunction is not related to his service, or as secondary to a service-connected disability.

In summary, the Board finds that the most probative evidence shows that the Veteran's erectile dysfunction was not present during the Veteran's active service or for many years thereafter and the record contains no indication that his post-service erectile dysfunction is causally related to his active service or any established event therein, nor is it casually related to or aggravated by any service-connected disability.

As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). The Board concludes that entitlement to service connection for erectile dysfunction, to include as secondary to service-connected epididymitis, is not warranted.

ORDER

Entitlement to service connection for erectile dysfunction (ED), to include as secondary to service-connected epididymitis, is denied.

____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: J W FRANCIS

text:
Citation Nr: 1803000
Decision Date: 01/16/18    Archive Date: 01/29/18

DOCKET NO.  11-17 904	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia

THE ISSUE

Entitlement to an effective date earlier than May 18, 2010, for the grant of entitlement to service connection for posttraumatic stress disorder (PTSD).

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States

ATTORNEY FOR THE BOARD

C. J. Houbeck, Counsel

INTRODUCTION

The Veteran had active service from September 1969 to September 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

This appeal was processed using the Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.  Accordingly, any future consideration of the case should take into consideration the existence of these electronic records.

FINDINGS OF FACT

1.  The Veteran's original claim for entitlement to service connection for an acquired psychiatric disorder was filed in July 2007, more than one year after his separation from service, and entitlement to service connection for PTSD (also claimed as bipolar disorder, paranoid schizophrenia, and manic depressive illness) was denied by the RO in an April 2008 rating decision.

2.  The Veteran did not file a timely notice of disagreement (NOD) with the April 2008 rating decision or otherwise express disagreement with the denial of the acquired psychiatric disorder claim.

3.  In May 2010, the Veteran submitted a claim for entitlement to service connection for PTSD.

4.  Prior to the receipt of the May 2010 claim there were no pending requests for service connection that remained unadjudicated, or a pending notice of disagreement with the April 2008 rating decision.

CONCLUSION OF LAW

The criteria for an effective date earlier than May 18, 2010, for the award of service connection for PTSD have not been met.  38 U.S.C. � 5110 (2012); 38 C.F.R. � 3.400 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

Neither the Veteran nor his representative has identified any potential shortcomings in fulfilling VA's duty to notify and assist.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits.

Earlier Effective Date

In general, where a claim for service connection is filed more than one year after separation from active service, the effective date for the grant of service connection is the date of receipt of claim, or the date entitlement arose, whichever is later.  38 U.S.C. � 5110(b) (2012); 38 C.F.R. � 3.400(b) (2017).

In this case, the Veteran separated from active service in September 1971.  He did not submit a claim of entitlement to service connection for an acquired psychiatric disorder within one year from his discharge.  Therefore, assignment of an effective date back to the day following discharge is not possible.  Instead, the appropriate effective date is the date of receipt of claim or the date entitlement arose, whichever is later.

The terms "claim" and "application" mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  See 38 C.F.R. � 3.1(p) (2017).

A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  See 38 U.S.C. � 5101(a) (2012); 38 C.F.R. � 3.151(a) (2017).

In July 2007, the Veteran brought claims for alcoholism, PTSD, paranoid schizophrenia, bipolar disorder, and manic depressive illness.  An April 2008 rating decision denied entitlement to service connection for PTSD (also claimed as bipolar disorder, paranoid schizophrenia, manic depressive illness), noting that the Veteran's service treatment records did not include diagnoses or treatment for PTSD, bipolar disorder, manic depressive illness, or paranoid schizophrenia.  The RO noted that in September 2004 the Veteran was diagnosed with depression but that there was no evidence that the Veteran was diagnosed with paranoid schizophrenia within one year of separation from service.  In September 2007, the RO had requested that the Veteran provide medical evidence confirming a diagnosis of PTSD and specific details of the in-service stressful incidents, but the Veteran had not provided that information.  The RO concluded that the claimed acquired psychiatric conditions neither occurred in nor were caused by service.

Rating actions are final and binding based on evidence on file at the time the Veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority.  38 C.F.R. � 3.104(a) (2017).  The Veteran has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period.  38 U.S.C. � 7105(b) and (c) (2012); 38 C.F.R. �� 3.160(d), 20.201, 20.302(a) (2017).

The record does not indicate that the Veteran submitted a timely notice of disagreement or other indication of disagreement with the April 2008 denial of the acquired psychiatric disorder claim.  The Veteran does not claim otherwise.  Thus, the April 2008 rating decision is final.  See 38 U.S.C. � 7104 (2012); 38 C.F.R. � 20.1103 (2017).

The effective date for a grant of service connection for an initial claim or on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later.  See 38 C.F.R. � 3.400(b)(2) and (q)(2) (2017).

On May 18, 2010, VA received a statement from the Veteran indicating that he was "filing to reopen my claim for service connection disability: 1) PTSD...".

After the Veteran submitted his May 2010 statement requesting entitlement to service connection for PTSD, in an October 2010 rating decision the RO granted entitlement to service connection and assigned a 50 percent disability rating, effective May 18, 2010.

The Veteran asserts the effective date for the grant of service connection should date back to July 2007, at which time the Veteran filed his initial claim for service connection benefits.  The basis for that assertion is that the severity of the Veteran's PTSD disability prevented him from providing the necessary information to grant the claim at that time and/or prevented him from timely appealing the April 2008 rating decision.  In addition, he was unaware of the availability of Veterans Service Organizations (VSOs) to assist him in his claim and asserted that had he been advised as to the potential for benefits at the time of separation from service he would have filed a claim at that time (as he contends that he had PTSD at the time of separation from service).  The Veteran requested that the original denial based on a final April 2008 decision be waived in light of his problems that prevented him from reading more than the first few lines of the denial.

While sympathetic to the Veteran's contentions, the Board is constrained by the law and regulations governing the establishment of effective dates for the award of compensation.  Although he claims that he was unaware of the availability of VSOs to assist him with his claim, the April 2008 notification letter accompanying the April 2008 rating decision specifically notified the Veteran, "We have no record of you appointing a service organization or representative to assist you with your claim.  You can contact us for a listing of the recognized veterans' service organizations and/or representatives.  Veterans' service organizations, which are recognized or approved to provide services to the veteran community, can also help you with any questions."  As to the severity of the Veteran's mental health problems preventing him from appealing the April 2008 rating decision or providing sufficient information to grant the claim at that time, the Veteran's condition did not preclude him from filing the initial claim in July 2007 and there is no indication of a worsening of the mental health symptoms thereafter that would have prevented him from filing a notice of disagreement with the April 2008 rating decision.  Moreover, the Veteran was able to submit multiple authorizations to obtain treatment records documenting his ongoing mental health treatment (none of which documented a diagnosis of PTSD), which weighs against his contention that his mental health problems prevented the Veteran from providing VA with the necessary information to grant his claim.

There are only two exceptions to the rule of finality of VA decisions, that is, challenges based on clear and unmistakable error (CUE) in a prior, final decision (38 U.S.C. �� 5109A, 7111), and reopened claims based on new and material evidence (38 U.S.C. � 5108).  Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002).

The Board has considered the Veteran's general contentions that there was sufficient evidence of record to grant his claim at the time of the April 2008 rating decision.  It is noteworthy, that the Veteran's arguments do not amount to an allegation of CUE.  In Fugo v. Brown, 6 Vet. App. 40 (1993), the Court stated that CUE is a very specific and rare kind of error and if the Veteran wishes to reasonably raise CUE there must be "some degree of specificity as to what the alleged error is and, unless it is the kind of error...that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error."  Thus, as a threshold matter, the Veteran must plead CUE with sufficient particularity.  Id.  The Court in Fugo also held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE.  Id.  Here, it is clear the Veteran never with any specificity alleged CUE with the past rating decision, but has merely argued that the RO improperly weighed the evidence.  Specifically, the Veteran argues that he had PTSD at the time of the April 2008 rating decision and there was sufficient evidence to grant the claim at that time.

As noted above, the effective date for a grant of service connection for an initial claim or on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later.  Thus, May 18, 2010, is the earliest effective date possible under the relevant laws and regulations for the Veteran's PTSD claim and the claim must be denied.  38 U.S.C. � 5110(a); 38 C.F.R. � 3.400.

ORDER

Entitlement to an effective date earlier than May 18, 2010, for the grant of entitlement to service connection for PTSD is denied.

____________________________________________
J. W. FRANCIS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs