series: legacy

judge_norm: YVETTE R WHITE

judge_role: Veterans Law Judge

disposition: denied

condition: diabetes

benefit: reduction

condition: cancer

condition: skin

condition: ptsd

disposition: granted

benefit: tdiu

text:
Citation Nr: 24019000
Decision Date: 05/06/24	Archive Date: 05/06/24

DOCKET NO. 17-66 390
DATE: May 6, 2024

ORDER

Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II (DM) is denied.

The reduction in the rating of B-cell lymphoma from 100 percent to noncompensable, effective March 1, 2017, was proper; the appeal is denied.

Entitlement to service connection for pancreatitis is denied.

Entitlement to an initial compensable rating for a residual surgical scar of the right upper extremity (RUE) is denied.

Entitlement to a compensable rating for a residual scar of the RUE status post excision is denied.

Entitlement to service connection for right lower extremity (RLE) peripheral neuropathy is denied.

Entitlement to service connection for left upper extremity (LUE) peripheral neuropathy is denied.

Entitlement to service connection for left lower extremity (LLE) peripheral neuropathy is denied.

Entitlement to service connection for RUE peripheral neuropathy is denied.

Entitlement to an effective date prior to February 6, 2018, for the grant of service connection for a residual surgical scar of the RUE is denied.

Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied.

Entitlement to an effective date prior to February 6, 2018, for the assignment of a 70 percent rating for PTSD is denied.

Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 31, 2020 is granted.

FINDINGS OF FACT

1. For the entire period on appeal, the Veteran's DM required restricted diet and oral hypoglycemic agents, but no daily injection(s) of insulin or regulation of activities with only occasional diplopia.

2. The discontinuance of the 100 percent rating for B-cell lymphoma is not a formal rating reduction, as the "reduction" was by operation of law in accordance with 38 C.F.R. � 4.117, Diagnostic Code 7715.

3. Since March 1, 2017, the competent medical evidence shows no recurrence of or treatment for B-cell lymphoma.

4. The evidence does not demonstrate that the Veteran has or had pancreatitis at any time during the appeal period.

5. For the entire period on appeal, the Veteran's service-connected residual surgical scar of the RUE has been manifested by one non-painful and stable scar; the scar was not deep and nonlinear, was not associated with underlying soft tissue damage, did not affect an area or areas of 144 square inches (929 sq. cm.) or greater, and did not have any other disabling effects.

6. For the entire period on appeal, the Veteran's service-connected residual scar of the RUE status post excision has been manifested by one non-painful and stable scar; the scar was not deep and nonlinear, was not associated with underlying soft tissue damage, did not affect an area or areas of 144 square inches (929 sq. cm.) or greater, and did not have any other disabling effects.

7. The evidence does not demonstrate that the Veteran has or had RLE peripheral neuropathy at any time during the appeal period.

8. The evidence does not demonstrate that the Veteran has or had LUE peripheral neuropathy at any time during the appeal period.

9. The evidence does not demonstrate that the Veteran has or had LLE peripheral neuropathy at any time during the appeal period.

10. The evidence does not demonstrate that the Veteran has or had RUE peripheral neuropathy at any time during the appeal period.

11. VA received the Veteran's TDIU application that was construed as a claim for service connection for a separate RUE scar, on February 6, 2018; VA received no communication that constitutes a formal or informal claim for service connection for a residual surgical scar of the RUE prior to the February 2018 TDIU application.

12. For the entire period on appeal, the Veteran's service-connected PTSD was manifested by occupational and social impairment with deficiencies in most areas, but without total social and occupational impairment.

13. VA received the Veteran's TDIU application that was construed as a claim for an increased rating for PTSD, on February 6, 2018; it is not factually ascertainable that an increase in this disability occurred between February 6, 2017 and February 5, 2018.

14. Prior to July 31, 2020, the Veteran had a combined disability rating of 70 percent or more with a single disability rated at 40 percent or more.

15. Prior to July 31, 2020, the Veteran was unemployable based solely on his service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 20 percent for DM have not been met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. � 4.119, Diagnostic Code 7913.

2. The reduction of the rating for the Veteran's B-cell lymphoma from 100 percent to noncompensable, effective March 1, 2017, was proper.  38 U.S.C. � 1155; 38 C.F.R. �� 3.105, 4.117, Diagnostic Code 7715.

3. The criteria for service connection for pancreatitis are not met.  38 U.S.C. �� 1110, 5107(b); 38 C.F.R. �� 3.102, 3.303(a).

4. The criteria for an initial compensable rating for a service-connected residual surgical scar of the RUE have not been met.  38 U.S.C. � 1155; 38 C.F.R. � 4.118, Diagnostic Code 7805.

5. The criteria for a compensable rating for a service-connected residual scar of the RUE status post excision have not been met.  38 U.S.C. � 1155; 38 C.F.R. � 4.118, Diagnostic Code 7802.

6. The criteria for service connection for RLE peripheral neuropathy are not met.  38 U.S.C. �� 1110, 5107(b); 38 C.F.R. �� 3.102, 3.303(a).

7. The criteria for service connection for LUE peripheral neuropathy are not met.  38 U.S.C. �� 1110, 5107(b); 38 C.F.R. �� 3.102, 3.303(a).

8. The criteria for service connection for LLE peripheral neuropathy are not met.  38 U.S.C. �� 1110, 5107(b); 38 C.F.R. �� 3.102, 3.303(a).

9. The criteria for service connection for RUE peripheral neuropathy are not met.  38 U.S.C. �� 1110, 5107(b); 38 C.F.R. �� 3.102, 3.303(a).

10. The criteria for an effective date earlier than February 6, 2018, for the grant of service connection for a residual surgical scar of the RUE have not been met.  38 U.S.C. �� 5101, 5103, 5103A, 5107, 5110; 38 C.F.R. �� 3.151, 3.155, 3.159, 3.400.

11. The criteria for a rating in excess of 70 percent for PTSD have not been met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. � 4.130, Diagnostic Code 9434-9411.

12. The criteria for an effective date earlier than February 6, 2018, for the assignment of a 70 percent rating for PTSD have not been met.  38 U.S.C. �� 5101, 5103, 5103A, 5107, 5110; 38 C.F.R. �� 3.151, 3.155, 3.159, 3.400.

13. The criteria for TDIU have been met for the entire period on appeal.  38 U.S.C. � 1155; 38 C.F.R. �� 3.340, 3.341, 4.16, 4.25, 4.26.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Unfortunately, the Veteran died during the pendency of this appeal in January 2021.  Given such, prior to discussing the appeal at hand, the Board would be remiss if it did not recognize the Veteran's outstanding service.  The Veteran had honorable active service with the United States United States Army from May 1970 to November 1971 with service in the Republic of Vietnam.  He received the National Defense Service Medal, Vietnam Service Meal, and Combat Infantryman Badge, as well other awards.  He was clearly a credit to the Army and to his family, and his service to his country is greatly appreciated.

The appellant is the Veteran's surviving spouse and has been deemed an eligible claimant for substitution by the Agency of Original Jurisdiction (AOJ).  See April 2023, AOJ letter.

The Board remanded these claims in October 2023 for the AOJ to review new evidence and issue a supplemental statement of the case (SSOC).  The AOJ reviewed the new evidence and issued an SSOC in November 2023.

From July 31, 2020 until his death, the Veteran was in receipt of a 100 percent combined rating and special monthly compensation (SMC) S-1.  The assignment of these ratings renders the issue of TDIU moot as of July 31, 2020.  As such, the issue of TDIU from July 31, 2020 until the Veteran's death will not be discussed further herein.  This issue has been recharacterized above.

Service Connection

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. � 1110.  Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Under 38 C.F.R. � 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. � 3.309 (a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Other organic diseases of the nervous system, including peripheral neuropathy, are chronic diseases under 38 C.F.R. � 3.309(a), but pancreatitis is not.  As such, 38 C.F.R. � 3.303 (b) is only applicable with regard to the peripheral neuropathy claims.

Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service.  38 C.F.R. � 3.303 (d).

Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability.  38 C.F.R. � 3.310(a).  Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  38 C.F.R. � 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995).

In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra.

1. Entitlement to service connection for LLE peripheral neuropathy

2. Entitlement to service connection for RLE peripheral neuropathy

3. Entitlement to service connection for RUE peripheral neuropathy

4. Entitlement to service connection for LUE peripheral neuropathy

Issues 1-4: The appellant asserts that the Veteran was entitled to service connection for peripheral neuropathy for the bilateral upper and lower extremities, secondary to his service-connected DM.  However, based on the evidence of record, service connection is not warranted.

With regard to a present disability, there are no diagnoses of peripheral neuropathy or diabetic neuropathy of any of the upper or lower extremities.  The appellant has not identified any outstanding treatment records that may show such diagnoses or indicated when the Veteran was diagnosed with such.  In fact, the appellant stated in October 2023 that there were no outstanding treatment records.  October 2023, Appellant statement.

Prior to his death, the Veteran was afforded a VA examination in June 2018 to address his peripheral neuropathy claims.  See June 2018, VA Diabetic Sensory-Motor Peripheral Neuropathy examination.  The examiner concluded that the Veteran did not have a diagnosis of peripheral neuropathy or any symptoms attributable to diabetic peripheral neuropathy.  Strength, deep tendon reflex, light touch/monofilament, position sense, vibration sensation, and cold sensation testing was all normal for the bilateral upper and lower extremities.  There was no muscle atrophy, trophic changes, or other pertinent physical findings, complications, conditions, signs, or symptoms.  The examiner did note that the Veteran had right carpal tunnel syndrome, but concluded that the evidence did not support a diagnosis of an acute or chronic diabetic peripheral neuropathy disorder or its residuals.

The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  In this case, there is no evidence of peripheral neuropathy of any of the extremities.  As such, the first elements of Shedden/Caluza and Wallin are not met for these claims.

Although laypersons, such as the Veteran and Appellant, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of neurological medicine.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  While the Veteran is certainly competent to report his symptoms, he is not competent to attribute those complaints to a particular diagnosis or any diagnosis at all.  See Jandreau v. Nicholson, 492 F.3 s 1372, 1377 n.4 (Fed. Cir. 2007) (Lay persons are not competent to diagnose degenerative joint and disc disease and spinal stenosis as these are not manifested by external but rather internal signs visible only through medical imaging technology and requiring expertise in radiographic analysis to diagnose); see also 38 C.F.R. � 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).  The Veteran and Appellant are not competent to diagnose peripheral neuropathy.  Moreover, their opinions would be outweighed by the opinion of the June 2018 examiner who is competent.

The Board is aware of the appellant's attorney's argument that the June 2018 examiner is not competent.  See December 2019, attorney letter.  The attorney argued that the examiner, an advanced nurse practitioner (ANP), was unqualified to address these issues because she had "not been shown to be trained in either endocrinology or neurology."  VA examiners are specially trained general medical professionals who are tested as to their general knowledge and competency within the scope of their training prior to being licensed to practice.  As such, they are presumed to be competent, and their opinions are not on par with a lay contention.  See 38 C.F.R. � 3.159 (a)(1), (2) (defining competent medical and lay evidence).  There is no requirement that a medical examination be conducted by a physician or that any examiner have specialty training related to the nature of the examination being undertaken.  Cox v. Nicholson, 20 Vet. App. 563, 568 (2007) (citing Goss v. Brown, 9 Vet. App. 109, 114 (1996)).  Essentially, "VA benefits from a presumption that it has properly chosen a person who is qualified to provide a medical opinion in a particular case."  Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011)).

For the presumption of competence to be rebutted, the appellant must raise the issue of examiner competence in the first instance by something more than a general assertion that an examination or opinion is inadequate.  See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019) (the challenge must be more than a general assertion that an examination or opinion is inadequate and must be raised by the Veteran in the first instance).  As the appellant's attorney has only made a general challenge without any specifics at all to the qualifications of the VA examiner, the Board finds that the presumption of competence as to the VA examiner here has not been rebutted.  Consequently, the Board finds the VA examiner who performed the Veteran's June 2018 VA examination was competent to perform the examination.

The Board is also cognizant of the Federal Circuit's decision in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).  However, in this case, the Veteran did not identify any symptoms relating to the upper or lower extremities, such as numbness or pain.  Rather, the Veteran simply generally filed a claim for service connection.  As there are no claimed symptoms, there is no functional impairment. In light of the lack of functional impairment or clinical diagnosis, the evidence does not support a finding of current peripheral neuropathy of the right or left upper or lower extremities.

Finally, the Board notes that the appellant's attorney has argued that VA has used an incorrect standard of a "confirmed diagnosis" in determining whether the Veteran had a current diagnosis.  See December 2023, attorney letter.  While the Board does afford appellants the benefit-of-the-doubt in all determinations, including whether there is a current disability, there is simply no evidence of a diagnosis, "confirmed" or otherwise, in this case.  None of the evidence establishes peripheral neuropathy or symptoms that could be attributed to peripheral neuropathy.  The VA treatment records (VA TRs) are negative for any such diagnosis, complaints, or symptoms, as is the June 2018 examination.  Simply put, there is no evidence of a current disability.

As the first elements of Shedden/Caluza and Wallin are not met for any of these claims, service connection cannot be granted, and the issue of in-service event or service-connected disability and medical nexus need not be discussed further.

Accordingly, the Board finds that the claims of entitlement to service connection for LLE, RLE, RUE, and LUE peripheral neuropathy must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the probative evidence weighs against the appellant's claims, that doctrine is not applicable.  38 U.S.C. � 5107(b); 38 C.F.R. � 3.102.

The Board is grateful for the Veteran's service, and regrets that it cannot render favorable decisions in these matters.

5. Entitlement to service connection for pancreatitis

The appellant claims that the Veteran's pancreatitis was caused or aggravated by his service-connected disabilities.  Specifically, she argues, through her attorney, that the Veteran drank alcohol as a symptom of his service-connected PTSD and that this alcohol use caused pancreatitis.  See December 2023, attorney letter.  Based on the evidence of record, service connection is not warranted.

With regard to a present disability, there are no diagnoses of pancreatitis during the appeal period (February 2018 until the Veteran's death).  The appellant has not identified any outstanding treatment records that may show such diagnoses or indicated when the Veteran was diagnosed with such.  While there is medical evidence showing pancreatitis in 2014, it had resolved by the time that the Veteran filed his claim and there is no indication that it recurred after 2014.

Significantly, the Veteran was afforded a VA examination to evaluate any pancreatitis in June 2018.  See June 2018, VA Gall Bladder and Pancreas Conditions examination.  The examiner noted his history of pancreatitis but noted that it had resolved at the time of the examination with the Veteran's cessation of drinking.  The examiner also reviewed the entire claims file, including the Veteran's treatment records, and still concluded that the Veteran did not have a diagnosis of pancreatitis during the appeal period or after 2014.  The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  As there is no evidence of current pancreatitis, the first element of Shedden/Caluza is not met.

Although laypersons, such as the Veteran and the appellant, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of endocrinology.  See Kahana, supra.  While the Veteran is certainly competent to report his symptoms and the appellant is competent to report her observations, neither of them is competent to attribute those complaints or observations to a particular diagnosis or any diagnosis at all.  See Jandreau v. Nicholson, 492 F.3 s 1372, 1377 n.4 (Fed. Cir. 2007) (Lay persons are not competent to diagnose degenerative joint and disc disease and spinal stenosis as these are not manifested by external but rather internal signs visible only through medical imaging technology and requiring expertise in radiographic analysis to diagnose); see also 38 C.F.R. � 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).  The Veteran and appellant are not competent to diagnose the Veteran with pancreatitis.  Moreover, their assertions would be outweighed by the June 2018 VA examiner who does have the education and training to render her competent to make such a diagnosis or non-diagnosis.

The Board is also cognizant of the Federal Circuit's decision in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).  However, in this case, neither the appellant nor the Veteran have identified any symptoms or possible functional impairment relating to the pancreas.  Notably, the Veteran denied any symptoms at the time of his June 2018 VA examination.  As there are no claimed symptoms, there is no functional impairment. In light of the lack of functional impairment or clinical diagnosis, the evidence does not support a finding of current pancreatitis.

As the first elements of Shedden/Caluza and Wallin are not met for this claim, service connection cannot be granted, and the issue of in-service injury or service-connected disability and medical nexus need not be discussed further.

Accordingly, the Board finds that the claim of entitlement to service connection for pancreatitis must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the probative evidence weighs against the Veteran's claims, that doctrine is not applicable.  38 U.S.C. � 5107(b); 38 C.F.R. � 3.102.

The Board is grateful for the Veteran's service, and regrets that it cannot render a favorable decision in this matter.

Effective Date

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. � 5110; 38 C.F.R. � 3.400.  If the claim for service connection is received within one year of a veteran's discharge from service, the effective date of an award of service connection will be the day following discharge from service.  38 U.S.C. � 5110(b)(1); 38 C.F.R. � 3.400(b)(2).  Otherwise, the effective date will be the later of the date of receipt of claim or the date entitlement arose.  38 U.S.C. � 5110; 38 C.F.R. � 3.400(b)(2).  It is a fundamental tenet of Veterans law that the effective date awarded for a service-connected condition corresponds with the date the claim was received or the date entitlement arose, whichever is later.  DeLisio v. Shinseki, 25 Vet. App. 45, 52, 58 (2011); 38 U.S.C. � 5110(a); 38 C.F.R. � 3.400 (2018).

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA.  38 U.S.C. � 5101(a); 38 C.F.R. � 3.151(a).  The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. � 3.1(p).

A claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of claimant who is not of full age or capacity may indicate a claimant's desire to file a claim for benefits by submitting an intent to file a claim to VA.  An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant.  Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary.  If VA receives a complete application form prescribed by the Secretary, as defined in paragraph (a) of � 3.160, appropriate to the benefit sought within 1 year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received.  38 C.F.R. � 3.155(b).

Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form.  Prior to March 24, 2015, VA recognized formal and informal claims.  The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen.  See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. �� 3.151, 3.155 (2016).  The amended regulations, however, apply only to claims filed on or after March 24, 2015.  As these claims were filed after March 24, 2015, informal claims may not be considered.

6. Entitlement to an effective date prior to February 6, 2018, for the grant of service connection for a residual surgical scar of the RUE

The Veteran submitted a TDIU application that was received by VA on February 6, 2018.  Although the TDIU application was premised solely on his service-connected PTSD, the AOJ broadly construed it as an increased rating claim for all service-connected disabilities, including his residual scar of the RUE status post excision (under DC 7802).  The AOJ then granted a separate noncompensable rating for a separate residual surgical scar of the RUE (under DC 7805), effective February 6, 2018.  The effective date of this grant of service connection for a separate RUE scar is what is before the Board.  The AOJ chose the effective date of February 6, 2018 based on the date of receipt of the claim.

The appellant disagrees with the assigned effective date arguing, through her attorney, that the effective date should be September 28, 2016, the date of receipt of an earlier TDIU claim.  See December 2023, attorney letter.  Upon review of the record, the Board finds that an earlier effective date cannot be granted.

The Board has reviewed the entire claims file, paying particular attention to any submissions to VA prior to February 6, 2018.  In this case, the Veteran did file a claim for TDIU that was received by VA on September 28, 2016.  See September 2016, TDIU application.  This claim made no mention of the RUE or any scars, stating only that the Veteran was unable to work due to "PTSD and diabetes and complications."  Despite this, the AOJ continued a 0 percent rating for a residual scar of the RUE status post excision in a December 2016 RD.  See December 2016, RD.  The Veteran had one year from this decision to appeal it.  However, he did not submit a notice of disagreement (NOD) on the TDIU issue or a new TDIU claim until February 6, 2018, and did not submit an NOD on the RUE scar rating until February 20, 2018.  See February 2018, TDIU application; February 2018, NOD.  Neither of these submissions were timely NODs as to the December 2016 RD.  As such, the AOJ properly accepted them as new claims and adjudicated a claim for an increased rating for the service-connected RUE extremity scar, continuing a 0 percent rating and granting a separate noncompensable for the second RUE scar effective February 6, 2018, in the August 2018 RD on appeal.

The Board notes that the Veteran did submit a timely NOD in January 2017 as to the ratings assigned for his DM and lymphoma in the December 2016 RD.  January 2017, NOD.  However, the NOD did not discuss the scar and in its discussion of lymphoma specifically and only referred to the rating for B-cell lymphoma, not any residual scars.

In sum, the Veteran did not submit any correspondence to VA regarding his RUE scar or desire for a rating for a separate RUE scar following the expiration of the one-year appeal period for the December 2016 RD until his February 2018 TDIU application and untimely NOD.  Further, there is no indication that there is any missing earlier correspondence that could constitute a claim for service connection for his RUE scar.  Without evidence of a timely NOD as to the December 2016 RD or claim earlier than February 2018, the Board cannot grant an earlier effective date for the grant of service connection for a residual surgical scar of the RUE.

To the extent that the Veteran experienced a second RUE scar prior to his February 2018 TDIU application, there is no provision in the law for awarding an earlier effective date based simply on the presence of the disability.  See Brannon v. West, 12 Vet. App. 32, 35 (1998) (the mere presence of medical evidence of a condition does not establish an intent on the part of the veteran to seek service connection for the disability).  Rather, the earlier presence of these disabilities only establishes an earlier date that entitlement arose.  This still does not entitle the Veteran to an earlier effective date, as the effective date must be the later of the date of receipt of the claim or the date entitlement arose.  In this case, the later date is the date of the TDIU claim.  38 U.S.C. � 5110; 38 C.F.R. � 3.400(b)(2).  The Veteran did not file a claim or provide any correspondence that can be construed as seeking service connection for a separate RUE scar prior to February 6, 2018.  This is the earliest allowable effective date under VA regulations.

In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the probative evidence weighs heavily against the Veteran's claim of entitlement to an effective date earlier than February 6, 2018, for the grant of service connection for a residual surgical scar of the RUE, that doctrine is not applicable.  38 U.S.C. � 5107(b); 38 C.F.R. � 3.102.

The Board is grateful for the Veteran's service, and regrets that it cannot render a favorable decision in this matter.

7. Entitlement to an effective date prior to February 6, 2018, for the assignment of a 70 percent rating for PTSD

The Veteran submitted a TDIU application that was received by VA on February 6, 2018.  The TDIU application was premised on his service-connected PTSD and the AOJ properly construed it as an increased rating claim for his service-connected PTSD.  The AOJ then granted an increased rating of 70 percent for PTSD effective February 6, 2018.  The AOJ chose the effective date of February 6, 2018 based on the date of receipt of the claim.

The appellant disagrees with the assigned effective date arguing, through her attorney, that the effective date should be September 28, 2016, the date of receipt of an earlier TDIU claim.  See December 2023, attorney letter.  Upon review of the record, the Board finds that an earlier effective date cannot be granted.

The Board has reviewed the entire claims file, paying particular attention to any submissions to VA prior to February 6, 2018.  As discussed in the section above, the Veteran did file a claim for TDIU that was received by VA on September 28, 2016.  See September 2016, TDIU application.  This claim for TDIU was premised on the Veteran's PTSD and was properly construed as a claim for an increased rating for PTSD.  The AOJ adjudicated the increased rating claim in a December 2016 RD, continuing a 50 percent rating for PTSD.  The Veteran had one year from this decision to appeal it.  However, he did not submit an NOD on the TDIU or PTSD issue or a new TDIU or PTSD claim until February 6, 2018.  See February 2018, TDIU application.  As the February 2018 TDIU application was outside of the one-year appeal period, it was not a timely NOD as to the December 2016 RD.  As such, the AOJ properly accepted the TDIU application as a new claim and adjudicated a claim for an increased rating for PTSD, assigning a rating of 70 percent effective February 6, 2018, in the June 2018 RD on appeal.

The Board notes that the Veteran did submit a timely NOD in January 2017 as to the ratings assigned for his DM and lymphoma in the December 2016 RD.  January 2017, NOD.  However, the NOD did not discuss PTSD or TDIU and cannot be construed as a timely NOD as to the December 2016 continuance of a 50 percent rating for PTSD.

In light of the above determination that the Veteran did not file a timely NOD as to the December 2016 RD, the Board finds that for the Veteran to receive an earlier effective date for this increased rating, the evidence must demonstrate either (1) a formal claim was filed between December 16, 2017 and February 5, 2018, or (2) a factually ascertainable increase in disability occurred during the period of February 6, 2017 and February 5, 2018.

The Board has reviewed the claims file for any documents submitted between the final December 2016 RD and the TDIU application received in February 2018.  In this case, the Veteran did not submit any correspondence to VA regarding his PTSD from the time of the December 2016 continuance of a 50 percent rating until the February 6, 2018 TDIU application.  Further, there is no indication that there is any missing earlier correspondence that could constitute a claim for an increased rating for PTSD.

Additionally, the medical evidence is negative for any factually ascertainable increase in disability of the Veteran's PTSD prior to his currently assigned effective date and within the one-year period prior to his December 2018 claim.  Notably, there were no psychiatric treatment records from this period.  The Veteran and Appellant have not argued such, not have they presented any specific argument for the earlier effective date claim.  There is simply no evidence showing a factually ascertainable increase in disability for PTSD prior to the current effective date of February 6, 2018.

As there are no unadjudicated claims for an increased rating for PTSD received prior to February 6, 2018, and no competent evidence demonstrating that an increase in disability was factually ascertainable between February 6, 2017 and February 5, 2018, the effective date of the assignment of a 70 percent rating for PTSD cannot be earlier than the date that the increased rating claim was received (February 6, 2018).  38 U.S.C. � 5110; 38 C.F.R. � 3.400.

Accordingly, the Board finds that the claim of entitlement to an effective date prior to February 6, 2018, for the assignment of a 70 percent rating for PTSD must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the probative evidence is against the Veteran's claim of entitlement to an earlier effective date, that doctrine is not applicable.  38 U.S.C. � 5107(b); 38 C.F.R. � 3.102.

The Board is grateful for the Veteran's service, and regrets that it cannot render a favorable decision in this matter.

Reduction

8. Reduction of B-cell lymphoma rating

The Veteran was originally awarded a 100 percent rating for his service-connected B-cell lymphoma under Diagnostic Code 7715 in a February 2015 RD.  See 38 C.F.R. � 4.117.  The 100 percent rating was in effect from August 21, 2014 to February 28, 2017.  A noncompensable rating was assigned effective March 1, 2017.

As there is no Diagnostic Code for B-cell lymphoma specifically, the Veteran was -rated by analogy under Diagnostic Code 7715 for non-Hodgkin's lymphoma.  38 C.F.R. � 4.20.  Under Diagnostic Code 7715, a 100 percent rating is assigned for non-Hodgkin's lymphoma with active disease or during a treatment phase.  38 C.F.R. � 4.117, Diagnostic Code 7715 (2017).  The 100 percent rating shall continue beyond the cessation of any surgical, radiation, antineoplastic chemotherapy or other therapeutic procedures.  Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination.  Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of � 3.105(e) of this chapter.  If there has been no local recurrence or metastasis, non-Hodgkin's lymphoma should be rated on its residuals.  38 C.F.R. � 4.117, Diagnostic Code 7715, Note (2017).

The Board notes that the rating criteria for Diagnostic Code 7715 were amended in December 2018.  However, the reduction in this case was effectuated in March 2017, prior to the amendments.  As such, they are not applicable.

The claim at issue is not a formal reduction under the substantive provisions of 38 C.F.R. � 3.343 and 38 C.F.R. � 3.344 because the provisions of 38 C.F.R. � 4.117, Diagnostic Code 7715 contain a temporal element for continuance of a 100 percent rating.  Therefore, the AOJ's action was not a rating reduction as that term is commonly understood.  See Rossiello v. Principi, 3 Vet. App. 430 (1992).

The Board must only determine if the procedural requirements of 38 C.F.R. � 3.105 (e) were met and if the reduction was by operation of law under Diagnostic Code 7715.  As discussed further below, the Board finds that the procedural requirements were properly followed in this case and the "reduction" was by operation of law under Diagnostic Code 7715 in this case.

When a rating reduction is considered, and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction must be prepared and mailed to the Veteran's address of record.  38 C.F.R. � 3.105(e).  This proposed rating should set forth all of the material facts and reasons for the proposed reduction.  The Veteran must be given 60 days to present additional evidence showing that compensation payments should be continued at the present level.

Service connection was granted for B-cell lymphoma and an initial 100 percent rating was assigned effective August 21, 2014.  See February 2015, RD.  In September 2015, the Veteran underwent a VA examination for his B-cell lymphoma.  See September 2015, VA Hairy Cell and Other B-Cell Leukemias examination.  The examiner indicated that the Veteran had completed treatment in November 2014 but that his disease status was still active.  In July 2016, more than 6 months following the discontinuance of treatment, the Veteran was afforded another VA examination.  See July 2016, VA Hematologic and Lymphatic Conditions, including Leukemia.  The July 2016 examiner noted that the Veteran had completed radiation in September 2014 and his disease status was in remission.  The Veteran denied any issues and the only noted residual was a RUE scar.

Following the July 2016 VA examination, the AOJ proposed a rating reduction from 100 percent to 0 percent in a September 2016 RD, which set forth the material facts and reasons for the proposed reduction, including the pertinent rating criteria and relevant findings from VA examinations and treatment records.  See September 2016, RD.  The Veteran was given 60 days to respond and present additional evidence.  Thus, the notice requirements for the reduction of the assigned rating for B-cell lymphoma were satisfied.  See 38 C.F.R. � 3.105(e).

Subsequently, in a December 2016 RD, the Veteran was notified of the AOJ's actual reduction of the 100 percent rating to a noncompensable rating, effective March 1, 2017.  See December 2016, RD.  The AOJ set forth the material facts and reasons for the final reduction, including the pertinent rating criteria and relevant findings from VA examinations and treatment records.  Thus, the procedural requirements of 38 C.F.R. � 3.105(e) were met.

In considering the evidence of record under the laws and regulations as set forth above, the Board also concludes there that is no evidentiary basis for continuance of the 100 percent rating for the Veteran's service-connected B-cell lymphoma under Diagnostic Code 7715 after March 1, 2017.  See 38 C.F.R. � 4.7.  The medical evidence does not suggest any recurrence of B-cell lymphoma after March 1, 20187, nor has the Veteran or Appellant claimed such.  There is no evidence or allegation the Veteran underwent treatment for B-cell lymphoma following the July 2016 VA examination.

In light of the above, the medical evidence clearly indicates that, at the time of the reduction, the Veteran's B-cell lymphoma was in remission without local recurrence or metastasis or compensable residuals.  The Board finds that the discontinuance of a 100 percent rating was proper.  See 38 C.F.R. � 4.117, Diagnostic Code 7715; Rossiello, 3 Vet. App. at 430.

The Board is grateful for the Veteran's service, and regrets that it cannot render a favorable decision in this matter.

Increased Rating

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C. � 1155; 38 C.F.R. � 4.1.

Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. � 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  38 C.F.R. � 4.3.

The Veteran's entire history is reviewed when making a disability determination.  38 C.F.R. � 4.1.  Where the veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal.  See Fenderson v. West, 12 Vet. App. 119 (1999).

Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern.  See Francisco v.  Brown, 7 Vet. App. 55 (1994).  However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different ratings, staged ratings may also be assigned.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. � 4.14.  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

Where a veteran has been diagnosed as having a specific condition and the diagnosed condition is not listed in the Ratings Schedule, the diagnosed condition will be evaluated by analogy to closely related diseases or injuries in which not only the functions affected, but the anatomical localizations and symptomatology, are closely analogous.  See 38 C.F.R. � 4.20.

9. Entitlement to a compensable rating for a residual scar of the RUE status post excision

10. Entitlement to an initial compensable rating for a residual surgical scar of the RUE

Issues 9-10: The Veteran's residual scar of the RUE status post excision has been evaluated as 0 percent disabling under Diagnostic Code 7802 and his residual surgical scar of the RUE has been initially evaluated as 0 percent disabling under Diagnostic Code 7805.  In February 2018, he filed a claim for TDIU that was treated as an increased rating claim for all service-connected disabilities, including his RUE scar.  Therefore, the relevant temporal focus pertaining to the RUE scars is from February 6, 2018 until his death.

During the pendency of this appeal, VA recently published a final rule amending its regulations on skin disabilities effective August 13, 2018.  Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted VA to do otherwise and VA did so.  See VAOGCPREC 7-2003.  However, "the case law is clear that a regulation is not to be applied retroactively unless the regulation is intended to be retroactive."  Ervin v. Shinseki, 24 Vet. App. 318, 322 (2011) (citing Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003)).

Here, the recently revised skin regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, August 13, 2018.  Hence, for the period beginning August 13, 2018, the version more favorable to the Veteran will apply.

Under the scar regulations in effect prior to August 13, 2018, scars that, as here, do not impact the head, face, or neck are rated under 38 C.F.R. � 4.118, Diagnostic Codes 7801 to 7805.

Under Diagnostic Code 7801, a 10 percent rating is assigned when a scar, not of the head, face, or neck, is deep and nonlinear, and covers an area of at least 6 square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.).  A 20 percent rating is assigned for a deep and nonlinear scar not of the head, face, or neck, with an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.).  A 30 percent rating is assigned for a deep and nonlinear scar not of the head, face, or neck, with an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.).  A 40 percent rating is assigned for a deep and nonlinear scar not of the head, face, or neck, with an area or areas of 144 square inches (465 sq. cm.) or greater.  A deep scar is one associated with underlying soft tissue damage.  38 C.F.R. � 4.118, Diagnostic Code 7801 (in effect from October 23, 2008 to August 13, 2018).

Under Diagnostic Code 7802, a 10 percent rating is assigned when a scar, not of the head, face, or neck, is superficial and nonlinear, and covers an area of at least 144 square inches (929 sq. cm.).  A superficial scar is one not associated with underlying soft tissue damage.  38 C.F.R. � 4.118, Diagnostic Code 7802 (in effect from October 23, 2008 to August 13, 2018).

Under Diagnostic Code 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful.  A 20 percent rating is assigned for three or four scars that are unstable of painful.  A 30 percent rating is assigned for five or more scars that are unstable or painful.  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  If one or more scars are both unstable and painful, 10 percent is added to the rating that is based on the total number of unstable or painful scars.  Finally, scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive a rating under Diagnostic Code 7804, when applicable.  38 C.F.R. � � 4.118, Diagnostic Code 7804 (in effect from October 23, 2008 to August 13, 2018).

Under Diagnostic Code 7805, any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 should be evaluated under an appropriate diagnostic code.  38 C.F.R. � � 4.118, Diagnostic Code 7805 (in effect from October 23, 2008 to August 13, 2018).

Under the scar regulations in effect since August 13, 2018, Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are associated with underlying soft tissue damage.  Under Diagnostic Code 7801, a 10 percent rating is assigned for a scar not of the head, face, or neck, that is associated with underlying soft tissue damage with an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.).  A 20 percent rating is assigned for a scar not of the head, face, or neck, that is associated with underlying soft tissue damage with an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.).  A 30 percent rating is assigned for a scar not of the head, face, or neck, that is associated with underlying soft tissue damage with an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.).  A 40 percent rating is assigned for a scar not of the head, face, or neck, that is associated with underlying soft tissue damage with an area or areas of 144 square inches (465 sq. cm.) or greater.  38 C.F.R. � 4.118, Diagnostic Code 7801 (in effect since August 13, 2018).

Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are not associated with underlying soft tissue damage.  A 10 percent rating is assigned for a scar not of the head, face, or neck, that is not associated with underlying soft tissue damage, with an area or areas of 144 square inches (929 sq. cm.) or greater.  38 C.F.R. � � 4.118, Diagnostic Code 7802 (in effect since August 13, 2018).

Diagnostic Code 7804 provides ratings for scars that are unstable or painful.  A 10 percent rating is assigned for one or two scars that are unstable or painful.  A 20 percent rating is assigned for three or four scars that are unstable or painful.  A 30 percent rating is assigned for five or more scars that are unstable or painful.  38 C.F.R. � � 4.118, Diagnostic Code 7804 (in effect since August 13, 2018).  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  38 C.F.R. � 4.118, Diagnostic Code 7804, Note (1).  If one or more scars are both unstable and painful, 10 percent is added to the rating that is based on the total number of unstable or painful scars.  38 C.F.R. � 4.118, Diagnostic Code 7804, Note (2).  Finally, scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive a rating under Diagnostic Code 7804, when applicable.  38 C.F.R. � 4.118, Diagnostic Code 7804, Note (3).

Under Diagnostic Code 7805, any disabling effects of other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804, that are not considered in a rating provided under diagnostic codes 7800-7804 are to be evaluated under an appropriate diagnostic code.  38 C.F.R. � 4.118, Diagnostic Code 7805 (in effect since August 13, 2018).

The Veteran was examined for his RUE scars in June 2018.  June 2018, VA Scars/Disfigurement examination.  At that time, the examiner observed two scars.  The first scar was due to the excision of the Veteran's lymphoma.  It was linear and measured 6cm.  The second scar was due to a burn from the Veteran's radiation for lymphoma.  It was superficial, non-linear, and less than deep partial thickness and measured 9cm by 6cm with a total area of 54 sq. cm.  Neither scar was painful or unstable.  There was no limitation of function, no other pertinent physical findings, complications, conditions, signs, or symptoms, and no impact on his ability to work.

The evidence also includes VA treatment records and lay statements from the Veteran.  However, none of the records or statements during the appeal period suggest that the RUE scars are symptomatic or larger than was measured by the June 2018 examiner.

The Board notes the appellant's attorney's argument that the Veteran's scar or scars were painful.  The attorney cited a September 2016 VA TR noting scar pain.  December 2023, attorney letter.  However, this VA TR is outside the appeal period.  There is no evidence of a painful scar or scars during the appeal period.

As there is no evidence that either scar is painful, unstable, deep and nonlinear, associated with underlying soft tissue damage, or affecting an area of at least 144 sq. cm at any time during the period on appeal, the Board finds that a compensable rating is not warranted for the residual scar of the RUE status post excision and an initial compensable rating is not warranted for the residual surgical scar of the RUE.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the probative evidence is against the Veteran's claims of entitlement to increased ratings, that doctrine is not applicable.  38 U.S.C. � 5107(b); 38 C.F.R. � 3.102.

Additionally, the Board notes that there is no indication in the medical evidence of record that the Veteran's RUE scars warranted other than the 0 percent rating assigned during the appeal period.  The assignment of staged ratings is not warranted for either claim.  See Fenderson, supra; Hart, supra.

The Board is grateful for the Veteran's service, and regrets that it cannot render a favorable decision in these matters.

11. Entitlement to a rating in excess of 20 percent for DM

The Veteran has been assigned a 20 percent rating under Diagnostic Code 7913.  In September 2016, he filed a claim for TDIU that was treated as an increased rating claim for all service-connected disabilities, including DM.  Therefore, the relevant temporal focus pertaining to DM is from September 28, 2016 until his death.

The appellant argues, through her attorney, that a higher rating is warranted for regulation of activities and the need for insulin, as well as separate compensable rating for his diplopia.  December 2023, attorney letter.

Under Diagnostic Code 7913, a 20 percent rating is assigned for DM requiring one or more daily injection of insulin and restricted diet, or; oral hypoglycemic agent and restricted diet.  A 40 percent rating is assigned for DM requiring one or more daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities).  38 C.F.R. � 4.119, Diagnostic Code 7913.

Compensable complications of DM are to be rated separately unless they are part of the criteria used to support a 100 percent evaluation.  Noncompensable complications are considered part of the diabetic process under DC 7913.  38 C.F.R. � 4.119, Diagnostic Code 7913, Note (1).

The Veteran was first examined in conjunction with his current claim in November 2016.  November 2016, VA DM examination.  At that time, the Veteran's DM was managed by restricted diet and prescribed oral hypoglycemic agent(s).  There was not requirement of regulation of activities.  The Veteran reported visiting his diabetic provider less than two times per month for episodes of ketoacidosis or hypoglycemia and no hospitalizations for such.  The examiner noted that he had progressive unintentional weight loss and loss of strength attributable to DM, but did not provide further details.  She also concluded that he did not have any DM-related complications.

The Veteran was then provided an eye examination to evaluate his DM-related eye complaints in January 2019.  January 2019, VA Eye Conditions examination.  The examiner noted that he had diplopia most likely due to his DM.  He was unable to perform all testing because of a lack of equipment in the office.  The Veteran described the diplopia as occurring two times in the past 12 months and not occurring in straight ahead gaze, only with quick head movements.  Although the diplopia was not correctable with standard spectacle correction, the examiner noted it was only occasional.

The record also includes multiple VA TRs.  None of these records indicate that the Veteran's DM required regulation of activities at any time during the appeals period or that he used insulin injections.

The Board notes that Appellant's attorney's arguments that (1) the November 2016 VA examiner described the Veteran requiring regulation of activities and (2) that the Veteran did require insulin injections but could not take them because of pancreatitis.  See December 2023, attorney letter.  As to the first argument, the November 2016 examiner did state that the Veteran would need "regularly scheduled breaks and lunches to keep blood sugars steady."  However, she also found that the Veteran would not be limited in a variety of physical activities, including, lifting/carrying and walking, and concluded that his diabetes "did not keep him from any activity at this time."  This is in addition to the examiner's specific finding that the Veteran did not require regulation of activities.  It is clear from the entirety of the opinion that the examiner did not believe the Veteran did not require regulation of activities, notwithstanding the need for breaks to eat.  As to the second argument that the Veteran should have used insulin but could not because of his pancreatitis, the rating criteria are clear that daily insulin injection(s) are a required aspect of a 40 percent rating.  Moreover, the Veteran would need both daily insulin injection(s) and regulation of activities to warrant a 40 percent rating.  Even if the Board were to accept the attorney's argument about insulin, the evidence is still clear that the Veteran did not have regulation of activities.  As such, a 40 percent rating cannot be assigned.

Upon review of the evidence of record, discussed above, there is no basis for a rating in excess of 20 percent for the Veteran's DM.  He was not prescribed daily injection(s) of insulin or required to regulate his activities.  Further, he has not had episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization.  Without evidence of more severe symptoms, including prescribed insulin and regulation of activities, a rating in excess of 20 percent cannot be assigned under any diagnostic code.

Additionally, a separate compensable rating cannot be assigned for diplopia as it is only occasional.  The rating criteria provide that diplopia that is occasional or that is correctable with spectacles is evaluated at 0 percent.  38 C.F.R. � 4.79, Diagnostic Code 6090, Note.  As the Veteran's diplopia was only occasional, there is no basis for a separate compensable rating.

The Board has also considered the Veteran's and Appellant's statements that the Veteran was be entitled to a higher rating.  Notably the appellant and Veteran, as laypersons, are competent to describe observable symptoms.  However, laypersons do not have the competence to render an opinion as to the level of severity of the Veteran's DM.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).

Additionally, the Board notes that there is no indication in the medical evidence of record that the Veteran's symptomatology warranted other than the 20 percent rating assigned during the appeals period.  The assignment of staged ratings is not warranted.  See Hart, supra.

The Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the probative evidence is against the Veteran's claim of entitlement to a rating in excess of 20 percent, that doctrine is not applicable.  38 U.S.C. � 5107(b); 38 C.F.R. � 3.102.

The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette, supra.

The Board is grateful for the Veteran's service, and regrets that it cannot render a favorable decision in this matter.

12. Entitlement to a rating in excess of 70 percent for PTSD

The Veteran has been assigned a 70 percent rating under Diagnostic Code 9434-9411.  In February 2018, he filed a claim for TDIU that was treated as an increased rating claim for all service-connected disabilities, including PTSD.  Therefore, the relevant temporal focus pertaining to PTSD is from February 6, 2018 until his death.

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned.  38 C.F.R. � 4.27.

Diagnostic Code 9434 provides the rating criteria for major depressive disorder (MDD).  Diagnostic Code 9411 provides the rating criteria for PTSD.  Both diagnostic codes are rated under the General Rating Formula for Mental Disorders.

The General Rating Formula provides that a 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.

A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  38 C.F.R. � 4.130, Diagnostic Code 9434-9411.

The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. � 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings.  Id.  The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation.  Id.

In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) stated that "a veteran may only qualify for a given disability rating under � 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration."  It was further noted that "� 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas."

The Veteran contends that many of the symptoms he exhibits corresponds to those found in the higher 100 percent rating criteria.  As noted above, a 100 percent rating is warranted where the veteran exhibits total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.

Assessing whether this particular rating is warranted "requires a two-part analysis." Emerson v. McDonald, 28 Vet. App. 200, 212 (2016).  It requires an "initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation, an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas."  Id.  More generally, the rating analysis for psychiatric disorders is symptom driven.  Golden v. Shulkin, 29 Vet. App. 221, 225 (2018); Vazquez-Claudio, 713 F.3d at 116 ("The regulation's plain language highlights its symptom-driven nature.").  The symptoms listed do not form an exhaustive list but rather serve as examples of the type and degree of symptoms that would justify the associated rating.  See Bankhead v. Shulkin, 29 Vet. App. 10, 18-19 (2017).  And the "'frequency, severity, and duration' of a veteran's symptoms must play an important role in determining his disability level."  Vazquez-Claudio, 713 F.3d at 117.

The Veteran was afforded a VA contract examination for his PTSD in March 2018.  March 2018, VA-LHI PTSD examination.  At that time, he reported being married with an understanding wife, going out of the house with his wife but mostly staying home, feeling comfortable visiting close family but only going to family's homes 1 to 2 times per year, seldom having conversations with neighbors, and not having any social gatherings.  He denied seeing a therapist or psychiatrist and indicated he had not talked about his mental health or emotions since his previous VA examination.  He reported taking psychiatric medications as needed and denied any history of suicide attempts or hospitalizations.  He reported avoidance, hypervigilance, exaggerated startle response, markedly diminished interest/participation in significant activities, feelings of detachment/estrangement, irritable behavior and angry outbursts, depressed mood, anxiety, suspiciousness, mild memory loss, flattened affect, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a worklike setting, and an inability to establish and maintain effective relationships.  The examiner observed that he was oriented, with logical and linear thoughts, no speech problems, and appropriate dress.  The Veteran denied hallucinations and suicidal thinking.  The examiner diagnosed him with PTSD and major depression, recurrent, mild, and concluded that the two diagnoses arose from the same etiology.  He opined that the Veteran's psychiatric disorder resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood.

The VA contract examination is the only medical evidence regarding the Veteran's psychiatric symptoms during the appeal period.  The lay evidence includes statements from the Veteran that are consistent with the March 2018 VA contract examination.

Upon review of the evidence of record, the Board finds that there is no basis for a rating in excess of 70 percent for the Veteran's service-connected PTSD.  Although the Veteran certainly experiences some degree of occupational and social impairment, as evidenced by his 70 percent rating, there is no evidence of total occupational and social impairment.  While the March 2018 VA-LHI examiner noted an inability to establish and maintain effective relationships, this was inconsistent with the examination report noting that he had positive relationships with his wife and close family.  While his relationships and socializing may be limited, this does not rise to the level of total occupational and social impairment.

In light of the evidence clearly showing at least some effective social relationships during the appeal period, the Board must conclude that the Veteran's symptoms were not of a severity to approximate the level of total occupational and social impairment warranting a 100 percent disability rating during the appeals period.  Although the presence or absence of certain symptoms is not dispositive to the issue of the proper disability rating, the presence or absence of symptoms is useful in determining the severity of the condition.  Here, there is no evidence of impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting self or others, or disorientation to time or place.

There is also no indication in the medical evidence that the Veteran's service-connected PTSD warranted other than the currently assigned 70 percent rating at any point during the appeals period.  The assignment of staged ratings is not warranted.  See Hart, supra.

Accordingly, the Board finds that the Veteran's claim of entitlement to a rating in excess of 70 percent for PTSD must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the probative evidence is against the Veteran's claim, that doctrine is not applicable.  38 U.S.C. � 5107(b); 38 C.F.R. � 3.102.

The Board is grateful for the Veteran's service, and regrets that it cannot render a favorable decision in this matter.

TDIU

A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 U.S.C. � 1155; 38 C.F.R. �� 3.340, 3.341, 4.16(a).

The term unemployability as used in VA regulations governing total disability ratings is synonymous with an inability to secure and follow a substantially gainful occupation.  See VAOPGCPREC 75-91 (Dec. 17, 1991).  The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage).  See Moore v. Derwinski, 1 Vet. App. 356 (1991).  In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal.  Friscia v. Brown, 7 Vet. App. 294 (1995).

The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.  Ray v. Wilkie, 31 Vet. App. 58, 72 (2019) (citing Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  Factors to be considered are the veteran's education, employment history, and vocational attainment.  See Pederson v. McDonald, 27 Vet. App. 276, 281 (2015).  VA will grant entitlement to a TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from securing and following "substantially gainful employment" consistent with the Veteran's education and occupational experience.  38 C.F.R. �� 3.40, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992).

If there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more.  38 C.F.R. � 4.16(a).  Disabilities resulting from a common etiology or affecting a single body system are considered one disability for the purpose of reaching the 60 percent single disability or 40 percent disability in combination with others.  38 C.F.R. � 4.16 (a)(2)-(3).  If a Veteran fails to meet the percentage requirements laid out in 38 C.F.R. � 4.16(a), an extra-schedular rating is for consideration where a Veteran is unemployable due to service-connected disability.  38 C.F.R. � 4.16(b).

13. Entitlement to a TDIU prior to July 31, 2020

The appellant and Veteran have claimed that the Veteran was unemployable as a result of his service-connected PTSD prior to July 31, 2020.  Therefore, they believe that a TDIU was warranted for this period.

Prior to July 31, 2020, the Veteran was service connected for PTSD and major depression, recurrent, mild, evaluated as 70 percent disabling; DM, evaluated as 20 percent disabling; tinnitus, rated as 10 percent disabling; and two scars of the RUE and B cell lymphoma, each rated as 0 percent disabling.  His combined rating was 80 percent.  As the Veteran has received a single disability rating of 40 percent or more and a combined rating of 70 percent or more, he has met the percentage rating standards for TDIU prior to July 31, 2020.  38 C.F.R. � 4.16(a).

As the Veteran met the percentage rating standards for TDIU prior to July 31, 2020, the remaining question before the Board is whether he was unemployable due solely to his service-connected disabilities.  The Board concludes that the evidence supports such a finding.

Significantly, a March 2018 VA contract examination for PTSD discussed the Veteran's employability.  March 2018, VA-LHI PTSD examination.  The March 2018 examiner noted that the Veteran had intrusive thoughts that would interfere with the ability to stay focused on the task at hand, significant difficulty accepting supervision or receiving instructions without becoming angry (authority conflict), significant difficulty functioning around other people, difficulty functioning as a team member, discomfort around others, and an inability to tolerate being around other people in any setting for more than a few minutes.  Although the examiner did not specifically opine as to whether the Veteran was employable or not based on his service-connected PTSD, it appears from the description of his limitations that working in almost any setting would have been extremely difficult.  It appears that the Veteran's limitations would have prevented employment in a setting that required interacting with others, such as co-workers or customers, remaining focused on the task at hand, or receiving supervision or instructions.

While the aforementioned limitation due to PTSD alone does not make him unemployable, this disability, along with his service-related diplopia make him unemployable. Specifically,  a January 2019 VA contract examiner opined that the Veteran's DM-related diplopia would limit his ability to work.  January 2019, VA Eye Conditions examination.  The examiner noted that the Veteran was retired but that he would have difficulty working with his diplopia due to double vision.

The evidence also includes the Veteran's VA Form 21-8940 addressing his prior work experience and education.  See February 2018, VA Form 21-8940.  On this form, the Veteran reported a work history as a self-employed painter and 4 years of high school education with no additional education or training.  He also indicated that he became too disabled to work in February 2008.

In consideration of the Veteran's psychiatric and visual limitations and education and work history, the Board finds that he was unable to work in either a physical or sedentary environment.  Although the Veteran's work history as a self-employed painter would eliminate the need to interact with supervisors, he would certainly need to interact with customers, stay focused on the task at hand, and see clearly.  He would not be able to perform his prior occupational tasks.  Moreover, his vision and interpersonal problems due to PTSD and DM-related diplopia, would make it difficult to obtain or maintain employment in any setting.

In light of the restrictions and limitations required for the Veteran and lack of reasonable jobs that would meet these restrictions, the Board is satisfied that the evidence of record shows that the Veteran's service-connected disabilities rendered him unemployable, both in unison, a physical and sedentary environment prior to July 31, 2020.  See Gleib v. Shinseki, 733 F.3d 1350 (2013) (held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO).

In considering the Veteran's service-connected disabilities and affording the appellant the benefit of the doubt, the Board finds that there is sufficient evidence that the Veteran was unemployable, in combination, due to his service-connected disabilities prior to July 31, 2020.

Accordingly, the criteria for a TDIU have been met for this period.

YVETTE R. WHITE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Moore, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: D SMART

disposition: remanded

text:
Citation Nr: 24020000
Decision Date: 05/14/24	Archive Date: 05/14/24

DOCKET NO. 19-22 534A
DATE: May 14, 2024

REMANDED

Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder, is remanded.

REASONS FOR REMAND

The Veteran had active service in the Army from December 1985 to December 1989 and from February 1991 to May 1991.

This matter comes before the Board of Veterans' Appeals (Board) from a July 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in May 2023, when the Board remanded for the RO to obtain updated medical records and a medical examination.

Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder, is remanded.

Since the February 2024 supplemental statement of the case, additional pertinent evidence, including February and March 2024 psychiatric treatment records, has been added to the record. This evidence has not been considered by the RO in adjudicating the Veteran's claim. In March 2024 correspondence, the Veteran was notified of this additional evidence and given the opportunity to waive RO consideration of this evidence. The correspondence stated that, if the Veteran did not respond within forty-five days, the Board would remand the case for RO review. The Veteran did not respond within forty-five days. Accordingly, remand is warranted for further adjudication by the RO and, possibly, issuance of a supplemental statement of the case.

The matters are REMANDED for the following action:

1. Obtain any outstanding private and VA treatment records.

2. Then, and after any other development deemed necessary, adjudicate the Veteran's claim. If the claim cannot be granted in full, issue a supplemental statement of the case and provide an opportunity to respond. If necessary, return the claims to the Board for further adjudication.

D. SMART

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Mansfield, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: B MULLINS

text:
Citation Nr: 24021000
Decision Date: 05/22/24	Archive Date: 05/22/24

DOCKET NO. 18-24 576
DATE: May 22, 2024

REMANDED

Entitlement to service connection for plantar fasciitis is remanded.

REASONS FOR REMAND

The Veteran honorably served on active duty in the United States Army from September 1971 to October 1973 and from October 1973 to February 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement in March 2016 and the RO issued a statement of the case in March 2018. In May 2018, the Veteran filed a VA Form 9 and requested to have a hearing before the Board. In August 2018, the RO issued a supplemental statement of the case (SSOC). In October 2021, the Veteran appeared before the undersigned Veteran's Law Judge (VLJ), the transcript of which has been associated with the claims file.

This matter was previously before the Board in March 2022 and March 2023. In February 2024, the RO issued a SSOC. This matter is now properly before the Board.

1. Entitlement to service connection for plantar fasciitis.

The Veteran contends that he should be service connected for plantar fasciitis.

The Board notes that in October 2023, the Veteran was afforded a VA examination. The examiner opined that the Veteran's plantar fasciitis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that calcaneal spurs can lead to plantar fasciitis but there is no evidence of calcaneal spur until 2012 which was 30 years post separation. The examiner also emphasized that there was a lack of substantiating evidence supporting a nexus between the current diagnosis of plantar fasciitis and military service. The examiner stated that without chronicity during service or after service, a post service event, illness, or injury is considered to be a more likely etiology.

In November 2023, the VA examiner provided another medical opinion. The examiner indicated that the Veteran's 2012 records indicate heel spurs and plantar fasciitis, which frequently occur concurrently. The examiner stated that there was no evidence found of chronic foot pain, foot injury or any other foot disorder during service, and thus it is less likely than not that the Veteran's plantar fasciitis was incurred in or caused by service. The Board notes, that the Veteran did provide lay statements asserting foot pain in service.

The November 2023 examiner discussed the Veteran's ingrown toenail and found that it had no relevance to the Veteran's chronic orthopedic foot disease, plantar fasciitis, and thus the examiner only mentioned it pursuant to the VA's request. The examiner noted that the Veteran's post service subjective statements regarding an onset during service can only be considered as objective when they are supported by actual objective evidence. The Board notes that the examiner's reference to the Veteran's lay statements and the weight it was given was improper as the Veteran is competent to report pain and onset of symptoms. Additionally, VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C. � 1154(a). Thus, there is no categorical rule that medical evidence is required when the determinative issue is either the existence of a current disability or a nexus to service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board notes, that the examiner must consider the Veteran's lay statements as subjective statements may be considered to determine onset and progress of the condition. The Board notes that the Veteran's testimony indicated he had pain when running, marching, and physical activity during service.

The November 2023 examiner further discussed that the Veteran's calcaneal spurs and the relationship between the Veteran's plantar fasciitis was not relevant since there is no indication of the onset of calcaneal spurs during service. The examiner stated that if the Veteran's service duties caused the conditions, there would be need for treatment and profiles, and continuing heavy duties with serious chronic foot issues is nearly impossible, and medical treatment is readily available during service. The examiner concluded that the actual elemental question of causation during service remains unchanged, and that there is no objective evidence supporting the likely causation of the Veteran's plantar fasciitis during service.

The Board's prior remand directives specifically asked that the examiner provide information to demonstrate that he or she is qualified to offer the requested opinion (such as a curriculum vitae or similar demonstrable documentation). Additionally, the Board acknowledges the Veteran's representative has raised the issue of the examiner's competence to opine on the Veteran's claimed condition; therefore, the Board finds remand is necessary to ensure that the examiner's information is associated with the Veteran's claims file. The information was not associated with the Veteran's claims file as previously requested. See Francway v. Wilkie, 940 F. 3d 1304 (Fed. Cir. 2019). Therefore, the Board finds that the examiner failed to address all of the requests in the Board's prior remand. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11Vet. App.268 (1998).

Therefore, remand is necessary to obtain an opinion that includes the examiner's consideration of the Veteran's lay statements and to obtain the examiner's curriculum vitae or similar demonstrable documentation to show competence to offer an opinion on the Veteran's condition.

The matters are REMANDED for the following action:

1. Obtain any outstanding private or government treatment records and service treatment records and associate them with the Veteran's claims file.

2. After all outstanding records are associated with the claims file, schedule the Veteran for a new VA examination with a qualified clinician. Because the Veteran's representative has raised the issue of the examiner's competence, the RO must ensure that the clinician provides information to demonstrate that he or she is qualified to offer the requested opinion regarding the Veteran's plantar fasciitis. The Board notes that the records sought are those related to the examiner's education, training, or experience in the form of a curriculum vitae. This information is to be associated with the Veteran's claims file. See Francway v. Wilkie,940 F.3d 1304(Fed. Cir. 2019).

The examiner must be provided a copy of this Remand, the Veteran's VA examinations, a copy of the Veteran's lay statements, and a copy of the October 2021 hearing transcript.

The examiner should address the following:

(a)	Consider the Veteran's lay statements regarding the in-service incident in which the Veteran's foot was run over in service. Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's plantar fasciitis was caused by this or any other in-service event or injury or otherwise etiologically related to service?

The Board notes that the Veteran contends he was not put on a profile but complained of foot pain in service. The examiner must also consider the Veteran's military occupational specialty and whether it is related to the Veteran's diagnosed plantar fasciitis.

The clinician is advised that the Veteran is competent to report his symptoms and medical history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, then the clinician must provide a reason for doing so. The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.

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A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.

3. After completing all indicated development, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board.

B. MULLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Associate Counsel, H. Hailu

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.