PERIPHERAL ARTERIAL OCCLUSIVE DISEASE (BUERGER'S DISEASE)

MICHAEL MARTIN · 2025 · Case ID: A25016583

MIXED

Summary

The Veteran, who served from September 1964 to May 1968, appeals the denial of earlier effective dates for several claims and the denial of an increased disability rating for PTSD. The Board granted service connection for PTSD with a 50 percent rating effective September 27, 2021, but denied an increased rating beyond 50 percent prior to March 9, 2023, and denied an increased rating beyond 70 percent from March 9, 2023. The Board found the evidence did not support the higher ratings prior to March 9, 2023, citing that the Veteran's symptoms, while significant, did not consistently meet the criteria for 70 percent or higher, particularly regarding panic attacks, severe irritability, and inability to function independently. The Board also denied earlier effective dates for claims related to arteriosclerotic heart disease (coronary artery disease) due to Agent Orange exposure and bilateral lower extremity diabetic peripheral neuropathy, finding the claims were either untimely appealed or initiated on the earliest possible date. The issue of entitlement to Total Disability based on Individual Unemployability (TDIU) and earlier effective dates for special monthly compensation (housebound) and Dependents' Educational Assistance were remanded due to a duty to assist error by the RO in failing to provide the Veteran with the necessary application for TDIU.

Rationale

Earliest claim filed January 17, 2024.; No prior informal or formal claims.; Entitlement arose on date of claim.

Special Benefit

SMC - HOUSEBOUND; TDIU; EARLIER EFFECTIVE DATE

Docket No.

241220-500919

Full Decision Text

Citation Nr: A25016583
Decision Date: 02/25/25 Archive Date: 02/25/25

DOCKET NO. 241220-500919
DATE: February 25, 2025

ORDER

Entitlement to an initial disability rating of 50 percent from September 27, 2021 to March 8, 2023 for PTSD is granted.

Entitlement to a disability rating in excess of 50 percent prior to March 9, 2023 for PTSD is denied.

Entitlement to a disability rating in excess of 70 percent from March 9, 2023 for PTSD is denied.

Entitlement to earlier effective date prior to January 17, 2024 for service connection for arteriosclerotic heart disease (coronary artery disease) with supraventricular arrhythmia, percutaneous coronary intervention, and cardiac hypertrophy associated with herbicide exposure is denied.

Entitlement to earlier effective date prior to January 17, 2024 for service connection for left lower extremity diabetic peripheral neuropathy, sciatic nerve is denied.

Entitlement to earlier effective date prior to January 17, 2024 for service connection for right lower extremity diabetic peripheral neuropathy, sciatic nerve is denied.

REMANDED

Entitlement to a total disability rating based on individual employability (TDIU) is remanded.

Entitlement to earlier effective date prior to January 17, 2024 for special monthly compensation based on housebound is remanded.

Entitlement to earlier effective date prior to January 17, 2024 for Dependents' Educational Assistance based on permanent and total disability is remanded.

FINDINGS OF FACT

1. Resolving reasonable doubt in the Veteran's favor, from September 27, 2021 to March 8, 2023, the Veteran's PTSD manifested as an occupational and social impairment with reduced reliability and productivity.

2. From March 9, 2023, the Veteran's PTSD manifest as an occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

3. Throughout the appeal period, the Veteran's PTSD has not manifested as a total occupational and social impairment.

4. A June 2015 rating decision denied service connection for coronary heart disease, the Veteran did not timely file a notice of disagreement, and new and relevant evidence as to the issue was not received within the one-year appeal period following issuance of the June 2015 rating decision, and thus became final.

5. On January 17, 2024, the Veteran filed a supplemental claim for entitlement to service connection for coronary artery disease claimed as ischemic heart disease due to Agent Orange exposure.

6. The earliest communication informal or formal, from the Veteran initiating a claim for entitlement to service connection for left lower extremity diabetic peripheral neuropathy of the sciatic nerve was on January 17, 2014.

7. The earliest communication informal or formal, from the Veteran initiating a claim for entitlement to service connection for right lower extremity diabetic peripheral neuropathy of the sciatic nerve was on January 17, 2014.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial disability rating of 50 percent from September 27, 2021 to March 8, 2023 for PTSD have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §4.130, Diagnostic Code 9411.

2. The criteria for entitlement to a disability rating in excess of 50 percent prior to March 9, 2023 for PTSD have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §4.130, Diagnostic Code 9411.

3. The criteria for entitlement to a disability rating in excess of 70 percent from March 9, 2023 for PTSD have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §4.130, Diagnostic Code 9411.

4. The criteria for entitlement to earlier effective date prior to January 17, 2024 for service connection for coronary heart disease have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 5110; 38 C.F.R. §§ 3.156, 3.158, 3.160, 3.400.

5. The criteria for entitlement to earlier effective date prior to January 17, 2024 for service connection for left lower extremity diabetic peripheral neuropathy, sciatic nerve have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 5110; 38 C
earlier effective date prior to January 17, 2024 for service connection for coronary heart disease have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 5110; 38 C.F.R. §§ 3.156, 3.158, 3.160, 3.400.

6. The criteria for entitlement to earlier effective date prior to January 17, 2024 for service connection for right lower extremity diabetic peripheral neuropathy, sciatic nerve have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 5110; 38 C.F.R. §§ 3.156, 3.158, 3.160, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from September 1964 to May 1968.

This matter is before the Board of Veterans' Appeals (Board) on appeal of the January 2024, May 2024, and June 2024 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).

In the December 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the January 2024, May 2024, and June 2024 RO decisions on appeal (respectively). 38 C.F.R. § 20.301. Any evidence submitted after the RO decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. 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).

The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).

INCREASED RATINGS

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).

When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3.
. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).

When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, 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.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Hart v. Mansfield, 21 Vet. App. 505, 519 (2007).

The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected rating, and the rating of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994).

4. Entitlement to an initial disability rating of 50 percent from September 27, 2021 to March 8, 2023, for PTSD

5. Entitlement to a disability rating in excess of 50 percent prior to March 9, 2023 for PTSD

6. Entitlement to a disability rating in excess of 70 percent from March 9, 2023 for PTSD

The Veteran seeks an earlier effective date for his increased disability rating of 70 percent for PTSD prior to March 9, 2023. Specifically, the Veteran contends he should have received an initial 70 percent disability rating, effective September 27, 2021.

On September 27, 2021, the Veteran submitted an Intent to File form. On May 25, 2022, the Veteran submitted a formal claim for entitlement to service connection for PTSD. In the September 2022 rating decision, the Veteran was awarded service connection for PTSD, with a 30 percent disability rating, effective September 27, 2021, the date of the Veteran's intent to file. On June 7, 2023, the Veteran submitted a supplemental claim application for an increased disability rating for PTSD. In the June 2023 rating decision, the Veteran was awarded an increased disability rating of 70 percent, effective March 23, 2023. In August 2023, the Veteran submitted a request for higher review.

In January 2024, the Veteran contended that he submitted a private examination, that noted that his symptoms were at a 70 percent disability rating since September 2021. His representative indicated that the May 2022 VA examiner noted more severe symptoms such as an inability to establish work relationships, leaving jobs often. In the January 2024 rating decision, the Veteran was denied an earlier effective date for an increased disability rating of 70 percent prior to March 9, 2023. Thus, the Board finds that the Veteran has continuously prosecuted his claim for PTSD, and has recategorized the orders to reflect an increased disability rating claim versus an effective date claim.

The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411.

Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).

A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational
App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).

A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment.

A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation).

A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity.

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

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

Summary of Relevant Evidence

In June 2021, the Veteran was afforded a VA examination for PTSD. The examiner opined that the Veteran's symptoms manifest as an occupational and social impairment with reduced reliability and productivity. The Veteran reported he had been married to his second wife for 30 years, and described the marriage as stable and very supportive. They live in Michigan in the winter months, and travel the country in the RV the rest of the year. The Veteran worked as an aircraft mechanic for 14 years, followed by 10 years in real estate. He eventually worked in a machine maintenance department in a factory. He retired in 2014. The Veteran reported after being released from the military he was a heavy drinker, but has been sober for the past 45 years, and actively participates in AA. The Veteran has symptoms of depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The examiner observed that the Veteran presented on time and was casually dressed and groomed. He was verbally spontaneous and engaged in the session. He was oriented with eye contact appropriate. Thoughts were clear and well organized. He became visibly emotional when recalling his observation and experiences from what he witnessed in Vietnam. The Veteran denied self-harm ideations.

In May 2022, the Veteran submitted a private medical opinion. The examiner indicated that the Veteran reported that he suffers from distressing memories, nightmares, flashbacks, and physiological distress when exposed to reminders of his time in service. He reported being hypervigilant, irritability, and insomnia. The Veteran also has moderate anxiety, and mild depression. He worries about his health. The Veteran denied past or current homicidal ideation, and endorsed past suicidal ideation, but denied current.

In June 2022, the Veteran was afforded a VA examination for his PTSD. The examiner opined that the Veteran's symptoms manifested as an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although
2022, the Veteran submitted a private medical opinion. The examiner indicated that the Veteran reported that he suffers from distressing memories, nightmares, flashbacks, and physiological distress when exposed to reminders of his time in service. He reported being hypervigilant, irritability, and insomnia. The Veteran also has moderate anxiety, and mild depression. He worries about his health. The Veteran denied past or current homicidal ideation, and endorsed past suicidal ideation, but denied current.

In June 2022, the Veteran was afforded a VA examination for his PTSD. The examiner opined that the Veteran's symptoms manifested as an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner noted that the Veteran remains happily married to his second wife of 31 years. He has 2 daughters and a son from his first marriage and 2 stepdaughters with his wife. He has 10 grandchildren and 7 great-grandchildren. He reports they are all doing well and has good relationships with them. The Veteran and his wife now have an apartment in Michigan to be close to family; enjoy living in an RV and traveling during the summer which they were doing at the time of today's appointment.

The examiner noted that the Veteran worked in the AF NG as an aircraft technician advancing into quality control until 1977. To maintain his sobriety, he changed his career to selling real estate for 10 years but then returned to machine repair for the remainder of his working life. Maintaining sobriety in the initial job was difficult because of the heavy drinking culture. He retired in 2014. Throughout his working life, he often had difficulty working with others even when he was sober due to his irritability, impatience, fatigue, etc. He often left jobs impulsively, stating "I kick myself for that now," or was fired from jobs. The examiner noted that the Veteran has not had suicidal ideation since 2016. The Veteran's symptoms include depressed mood, anxiety, chronic sleep impairment and difficulty in establishing and maintaining effective work and social relationships. The examiner observed that the Veteran was casually dressed with a groomed appearance, was fully oriented, and remained engaged for the duration of the evaluation. His demeanor was very pleasant and cooperative. Mood was "a little anxious"; affect was mood congruent. No indices of a formal thought disorder were noted. Expressive and receptive speech were normal at a conversational level. Thoughts were organized, linear, and goal directed.

In June 2023, the Veteran submitted a March 2023 private examination report. The examiner indicated that the Veteran has lived with his wife for the past 30 years. He is retired, but worked as a machine repairman, real estate agent, and with computers. He completed 32 hours of community college. The examiner indicated that the Veteran's symptoms manifest as an occupational and social impairment with reduced reliability and productivity. The Veteran's symptoms include depressed mood, anxiety, panic attacks what occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent events, impairment of short and long term memory, for example retention of only highly learned material while forgetting to complete tasks, difficulty in understand complex commands, impaired judgment, disturbances of motivation and mood, difficulty adapting to stressful circumstances, including work or a work like setting, and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner indicated that the Veteran is capable of managing his financial affairs. The examiner noted that the Veteran has had these symptoms since September 2021.

Resolving reasonable doubt in the Veteran's favor, the Board finds that an initial 50 percent disability rating from September 27, 2021 is warranted. The Board finds that a disability rating in excess of 50 percent prior to March 9, 2023, is not warranted. The Board finds that while the Veteran was afforded reasonable doubt in the grant of the 70 percent disability rating, effective March 9, 2023, based on the March 9, 2023 private examination, the Veteran's treatment records do not support the findings contained in this report.

The probative evidence is against finding that prior to March 9, 2023, the Veteran has had panic attacks what occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, difficulty adapting to stressful circumstances, including work or a work like setting, and impaired impulse control, such as unprovoked irritability with periods of violence, prior to the March 9, 2023 private examination report. The Board acknowledges that the Veteran reported that he reported he often left jobs impulsively, stating "I kick myself for that now," or was fired from jobs. However, the Board finds that this is more consistent with difficult in establishing and maintaining effective work relationships. The Veteran has been able to hold jobs for 10 or more years at a time. The Veteran's treatment records reflect that the Veteran has taken medication or periodic panic attacks or anxiety, however the Veteran's treatment records, and VA examinations also note that the Veteran has mild depression, and they do not note panic attacks. The probative evidence shows that the Veteran has anger, but does not reflect that the Veteran has unprovoked irritability with periods of violence, prior to the March 9, 2023 private examination report.

The Board acknowledges the Veteran's representative's contentions that the May 2022 private examiner noted severe symptoms that warrant a 70 percent disability rating. However, the Board disagrees, the Board finds that the Veteran's symptoms listed most approximately represent a 30 percent disability rating. The examiner noted that the Veteran began drinking beer at the age of 14, and while drinking beer on special occasions he would drink 4-5 beers during each sitting. From 22-30 he consumed alcohol daily, all day. The Veteran stopped drinking after he was involved in an incident where he was assaulted and hospitalized. He received outpatient treatment. The Veteran's symptoms include hypervigilance, depression, anxiety, avoiding memories/thoughts, irritability, insomnia, emotional (tearfulness), lack of enjoyment, no homicidal ideation, or current suicidal ideation.

The Board notes that none of these symptoms would be considered closely approximating the criteria of a 70 percent disability rating. Most of the Veteran's symptoms would be construed as depression, anxiety, suspiciousness, or chronic sleep impairment, which are attributed to a 30 percent disability rating. The Board notes that the examiner discusses a history of behavior surrounding alcohol abuse, but the Veteran's alcohol abuse was prior to the appeal period, as the probative evidence demonstrates that the Veteran has not consumed alcohol in over 40 years. The Board finds that the symptoms contained within the May 2022 private examination are more consistent with a 30 percent disability rating, but could potentially stretch into a 50 percent disability rating at their absolute worst.

The Board also acknowledges the Veteran's representative's contention, that the June 2022 VA examination showed more severe symptoms such as inability to establish work relationships, leaving jobs often. But, as noted above, the Board finds that the Veteran "leaving jobs often" is consist with difficulty in maintaining relationships, not an inability. Furthermore, the June 2022 VA examiner acknowledged the Veteran's statements, but did not consider them to suggest that the Veteran had an inability to establish and maintain effective relationships. The Veteran did not report that the working was stressful, he reported he just quit. The probative evidence demonstrates that the Veteran can establish and maintain effective relationships, as he has been with his wife for over 30 years, and has good relationships with his children and grandchildren. The Veteran spends half the year exploring in his RV. The May 2022 private examiner indicated that the Veteran reported that he was employed as a maintenance technician for 5 years at G., and he was doing the same type of work for the past 30-40 years. The Veteran was not precluded from working due to his disabilities, as he was able to sustain a job for at least 5 years. The Veteran's symptoms do not manifest as an occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

The Board also acknowledges that the Veteran's symptoms improved from the June 2021 VA examination, and the June 2022 VA examination. In addition, the May 2022 private examiner noted symptoms that the Board finds to be more consistent with a 30 percent disability rating. The Board also notes that no VA or private examiner indicated that the Veteran's symptoms manifest as an occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board will not disturb these findings, but notes
years. The Veteran's symptoms do not manifest as an occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

The Board also acknowledges that the Veteran's symptoms improved from the June 2021 VA examination, and the June 2022 VA examination. In addition, the May 2022 private examiner noted symptoms that the Board finds to be more consistent with a 30 percent disability rating. The Board also notes that no VA or private examiner indicated that the Veteran's symptoms manifest as an occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board will not disturb these findings, but notes that the probative evidence is against finding that the Veteran had symptoms more closely approximating a 70 percent disability rating prior to March 9, 2023. Thus, in the analysis below, the Board will limit the discussion of the March 2023 private examination, as it has been specifically addressed.

The Board finds that a disability rating in excess of 50 percent prior to March 9, 2023, for PTSD is not warranted.

The Veteran's treatment records, and June 2021 VA examination, May 2022 private examination, and June 2022 VA examination, and the Veteran's lay statements contained in the Veteran's treatment records, and the identified examinations show that the Veteran's PTSD was manifested by symptoms associated with a 50 percent rating including disturbances of motivation and mood, impairment of short and long term memory, for example retention of only highly learned material while forgetting to complete tasks, difficulty in understand complex commands, and difficulty in establishing and maintaining effective work relationships, and as noted above, the Veteran's symptoms did not manifest as those associated with a 70 percent disability rating, beyond that March 9, 2023 examination report. The Veteran also had symptoms that are not listed with a specific rating, such as hypervigilance, which is similar to suspiciousness or anxiety. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating or lower, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126.

The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during all VA and private examinations throughout the appeal period.

The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 50 percent rating. During the June 2021 VA examination and June 2023 private examination, the examiners noted that the Veteran's symptoms manifested occupational and social impairment with reduced reliability and productivity. However, in the June 2022 VA examiner opined that the Veteran's symptoms manifested as an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The May 2022 private examiner did not offer an assessment, but the symptoms listed are most accurately associated with a 30 percent disability rating.

While the Veteran did experience symptoms contemplated by a 70 percent rating, as described above the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating prior to March 9, 2023. The Board finds that the probative evidence is against find that the Veteran's symptoms have manifested at a 100 percent disability rating, at any time throughout the appeal period. The only symptom the Veteran has endorsed contemplated by the 100 percent disability rating is suicidal ideation, and the Veteran has denied suicidal ideation during the entire appeal period. Thus, the Board finds that a disability rating in excess of 70 percent from March 9, 2023, is not warranted.

In short, the evidence of record persuasively weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 70 percent rating, prior to March 9, 2023. The criteria for a 70 percent or higher rating are not met and the appeal must be denied.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to
is suicidal ideation, and the Veteran has denied suicidal ideation during the entire appeal period. Thus, the Board finds that a disability rating in excess of 70 percent from March 9, 2023, is not warranted.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). If the evidence is not in approximate balance or nearly equal in the veteran's favor, the claim must be denied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

In this case, the Board resolves reasonable doubt in finding that an initial disability rating of 50 percent is warranted for the Veteran's PTSD. The Board does not that there is an approximate balance of positive and negative evidence, to increase the Veteran's disability rating to 70 percent prior to the March 9, 2023 private examination, as the findings within the report are not consistent with the Veteran's prior lay testimony, treatment records, VA examinations, and May 2022 private examination report. The Board finds that the probative evidence is against find that a disability rating in excess of 70 percent is warranted throughout the appeal period.

EFFECTIVE DATE

Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a) (previously 38 U.S.C. § 3010(a)). The effective date for an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the effective date is the later of the date of receipt of the claim or the date entitlement to service connection arose. 38 C.F.R. § 3.400(b)(2).

The effective date based on the submission of new and material evidence received after a final disallowance is the date of the receipt of the new claim. 38 C.F.R. §§ 3.40(q)(2) (previously 38 C.F.R. § 3.400(q)(1)(ii)), 3.400(r). The effective date for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002) (holding that 38 U.S.C. § 5110(a) "is clear on its face with respect to granting an effective date for an award of VA periodic monetary benefits no earlier than the date that the claim for reopening was filed").

The United States Court of Appeals for Veterans Claims (Court) explained that the statutory framework does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits based on a reopened claim. Id. (holding that the term "new claim," as it appeared in 38 C.F.R. § 3.400(q), means a claim to reopen a previously and finally decided claim).

Regulations that were in effect prior to March 24, 2015, required that an informal claim "must identify the benefit sought." See 38 C.F.R. §§ 3.155, 3.160. The regulations also provided that a claim may be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). The regulations in effect since March 24, 2015, do not allow for informal claims that are not submitted on an application form prescribed by the Secretary. See 38 C.F.R. §§ 3.155, 3.160. The Board will apply the regulations in effect prior to March 24, 2015, for all communications received prior to March 24, 2015.

Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed
either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). The regulations in effect since March 24, 2015, do not allow for informal claims that are not submitted on an application form prescribed by the Secretary. See 38 C.F.R. §§ 3.155, 3.160. The Board will apply the regulations in effect prior to March 24, 2015, for all communications received prior to March 24, 2015.

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. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015.

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. 38 U.S.C. § 5101(a) (previously 38 U.S.C. § 3001(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). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application, therefore. 38 U.S.C. § 5110(a) (previously 38 U.S.C. § 3010(a)). The effective date for an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the effective date is the later of the date of receipt of the claim or the date entitlement to service connection arose. 38 C.F.R. § 3.400(b)(2).

Further, under the AMA, an effective date can be preserved if the claim is continuously pursued by filing an appropriate administrative review option to an AMA decision, generally within one year from when the decision was issued. 38 C.F.R. § 3.2500(c). If an AMA claim is continuously pursued, it will be considered filed as of the date of the first claim in the continuously pursued chain, not the date the most recent request for review was received. 38 C.F.R. § 3.2500(h). For decisions rendered after a Higher-Level Review by the RO, continuous pursuit can be established by filing either a supplemental claim or a VA Form 10182. Id. For supplemental claims received more than one year after the RO issues notice of a decision, the effective date will be fixed in accordance with the date entitlement arose but will not be earlier than the date of receipt of the supplemental claim. 38 C.F.R. § 3.2500(h)(2).

A claimant may withdraw a supplemental claim or a request for a higher-level review at any time before VA renders a decision on the issue. A claimant must submit in writing or through electronic submission in a manner prescribed by the Secretary any notice of withdrawal of an issue under the selected review option to the agency of original jurisdiction. The withdrawal will be
pursuit can be established by filing either a supplemental claim or a VA Form 10182. Id. For supplemental claims received more than one year after the RO issues notice of a decision, the effective date will be fixed in accordance with the date entitlement arose but will not be earlier than the date of receipt of the supplemental claim. 38 C.F.R. § 3.2500(h)(2).

A claimant may withdraw a supplemental claim or a request for a higher-level review at any time before VA renders a decision on the issue. A claimant must submit in writing or through electronic submission in a manner prescribed by the Secretary any notice of withdrawal of an issue under the selected review option to the agency of original jurisdiction. The withdrawal will be effective the date VA receives it. A claimant may withdraw an appeal to the Board of Veteran's Appeals as prescribed in § 20.205. 38 C.F.R. § 3.2500(d)

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

1. Entitlement to earlier effective date prior to January 17, 2024 for service connection for coronary heart disease

The Veteran seeks an earlier effective date for service connection for coronary heart disease.

On December 11, 2014, the Veteran filed a claim for entitlement to service connection for his heart. In the June 2015 rating decision, the Veteran's claim for service connection for coronary artery disease claimed as ischemic heart disease was denied, as there was no objective medical evidence of significant coronary artery disease or ischemic heart disease. The Veteran did not file a notice of disagreement, and new and material evidence as to the issue was not received within the one-year appeal period following issuance of the June 2015 rating decision. As such, the Veteran did not complete a timely appeal of the June 2015 rating decision, and the decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.201, 20.302, 20.1103.

On January 17, 2024, the Veteran filed a supplemental claim application for coronary artery disease claimed as ischemic heart disease due to Agent Orange exposure. In the June 2024 rating decision, the Veteran was awarded service connection for arteriosclerotic heart disease (coronary artery disease) with supraventricular arrhythmia, percutaneous coronary intervention, and cardiac hypertrophy associated with herbicide exposure, effective January 17, 2024.

The Board finds that an earlier effective date prior to January 17, 2024, is not warranted. The Board notes that a decision assigning an effective date for a disability becomes final when the decision is not appealed, and an appellant can only attempt to overcome finality of the decision by a request for revision based on clear and unmistakable error, or by a claim to reopen based upon new and relevant evidence. However, because the proper effective date for an award based on a claim to reopen could be no earlier than the date on which that claim was received, only a request for revision based on clear and unmistakable error could result in the assignment of an earlier effective date. Rudd v. Nicholson, 20 Vet. App. 296 (2006).

The Board finds that to the extent that the Veteran the seeks an effective date earlier than January 17, 2024, for service connection for arteriosclerotic heart disease (coronary artery disease) with supraventricular arrhythmia, percutaneous coronary intervention, and cardiac hypertrophy associated with herbicide exposure, that it is an impermissible freestanding earlier effective date claim. The only means of establishing an effective date earlier than January 17, 2024, would be to establish clear and unmistakable error in the prior decision. Because there is no communication from the Veteran or representative specifically asserting clear and unmistakable error, the Board does not have jurisdiction to address any clear and unmistakable error claim. Jarrell v. Nicholson, 20 Vet. App. 326 (2006) (providing that each new theory of CUE is a separate and distinct matter, and the Board lacks jurisdiction over any theory of
supraventricular arrhythmia, percutaneous coronary intervention, and cardiac hypertrophy associated with herbicide exposure, that it is an impermissible freestanding earlier effective date claim. The only means of establishing an effective date earlier than January 17, 2024, would be to establish clear and unmistakable error in the prior decision. Because there is no communication from the Veteran or representative specifically asserting clear and unmistakable error, the Board does not have jurisdiction to address any clear and unmistakable error claim. Jarrell v. Nicholson, 20 Vet. App. 326 (2006) (providing that each new theory of CUE is a separate and distinct matter, and the Board lacks jurisdiction over any theory of CUE that has not been adjudicated by the RO in the first instance); Huston v. Principi, 18 Vet. App. 395 (2004). Insofar as the Veteran has attempted to raise a freestanding earlier effective date claim, the claim is dismissed. Rudd v. Nicholson, 20 Vet. App. 296 (2006).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). If the evidence is not in approximate balance or nearly equal in the veteran's favor, the claim must be denied. Lynch v. McDonough, 21 F.4th 776, 781-82 (2021).

In this case, the Board finds that an earlier effective date prior to January 17, 2024 for service connection for arteriosclerotic heart disease (coronary artery disease) with supraventricular arrhythmia, percutaneous coronary intervention, and cardiac hypertrophy associated with herbicide exposure is not warranted. The Veteran did not file a notice of disagreement and new and relevant evidence as to the issue was not received within the one-year appeal period following issuance of the June 2015 rating decision. As such, the Veteran did not complete a timely appeal of the June 2015 rating decision, and the decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.201, 20.302, 20.1103. The submission of the January 17, 2024 supplemental claim is the earliest allowable effective date for entitlement to service connection for the Veteran's coronary heart disease, as it is the date the Veteran reopened his claim.

2. Entitlement to earlier effective date prior to January 17, 2024 for service connection for left lower extremity diabetic peripheral neuropathy, sciatic nerve

3. Entitlement to earlier effective date prior to January 17, 2024 for service connection for right lower extremity diabetic peripheral neuropathy, sciatic nerve

The Veteran seeks an earlier effective date prior to January 17, 2022 for entitlement to service connection for bilateral lower extremity diabetic peripheral neuropathy of the sciatic nerve.

On January 17, 2024, the Veteran filed a claim for service connection for diabetic neuropathy secondary to exposure to Agent Orange. In the May 2024 rating decision, the Veteran was granted service connection for left lower extremity diabetic peripheral neuropathy, sciatic nerve, rated at 10 percent, effective January 17, 2024. The Veteran was also granted service connection for his right lower extremity diabetic peripheral neuropathy, sciatic nerve, rated at 10 percent, effective January 17, 2024. Prior to the submission of the January 17, 2024, the Veteran has not filed an informal claim prior to March 2015, or a formal claim subsequent to the regulation change. The Board finds that the Veteran is in receipt of the earliest effective date, as January 17, 2024, is the first date the Veteran filed for service connection for his bilateral lower extremity diabetic neuropathy.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). If the evidence is not in approximate balance or nearly equal in the veteran's favor, the claim must be denied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

In this case, the Board does not find that there is an approximate balance of positive and negative evidence, as the earliest communication from the Veteran
diabetic neuropathy.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). If the evidence is not in approximate balance or nearly equal in the veteran's favor, the claim must be denied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

In this case, the Board does not find that there is an approximate balance of positive and negative evidence, as the earliest communication from the Veteran initiating a claim informal or formal, for entitlement to service connection for bilateral lower extremity diabetic peripheral neuropathy of the sciatic nerve was on January 17, 2014. Thus, the Veteran is in receipt of the earliest effective date.

REASONS FOR REMAND

1. Entitlement to a total disability rating based on individual employability

2. Entitlement to earlier effective date prior to January 17, 2024 for special monthly compensation based on housebound

3. Entitlement to earlier effective date prior to January 17, 2024 for Dependents' Educational Assistance based on permanent and total disability

The issue of a TDIU was raised by the record, when the Veteran reported that he lost a lot of jobs during the June 2022 VA examination. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU rating is part of an appeal for a higher rating claim when such claim is raised by the record. The Board finds that a duty to assist error occurred prior to the June 2023 rating decision on appeal, and the RO did not issue the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to determine if the Veteran was asserting that he was precluded from working.

A decision on the other remanded issues could significantly impact a decision on the issue of entitlement to a TDIU. Therefore, the issues are inextricably intertwined. A remand of the claim for entitlement to a TDIU is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined).

The matter is REMANDED for the following action:

Issue a notice letter to the Veteran concerning the claim for a TDIU. Ask him to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Upon receipt of the form, complete any additional development necessary.

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Quist, 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.

Analyze in VA Law Explorer