Case A25057266

B.T. KNOPE · 2025 · Case ID: A25057266

MIXED

Summary

The Veteran, who served from June 1965 to January 1969, appeals the denial of several effective dates for granted claims and the denial of increased ratings for existing conditions. The Veteran sought earlier effective dates for tinnitus, bilateral hearing loss, obstructive sleep apnea, prostate cancer, hypertension, and bronchial asthma with chronic bronchitis. He also appealed the denial of increased ratings for PTSD, bilateral hearing loss, tinnitus, prostate cancer, bronchial asthma with chronic bronchitis, and coronary artery disease (CAD). Service connection for avascular necrosis, a left leg condition, and a right leg condition was granted. The Board denied the requested earlier effective dates for most claims, citing the PACT Act's August 10, 2022, effective date for presumptive conditions and the lack of earlier claims or evidence. Increased ratings for PTSD, bilateral hearing loss, tinnitus, prostate cancer, bronchial asthma with chronic bronchitis, and CAD were also denied due to the Veteran not meeting the criteria for higher diagnostic ratings. The Board granted service connection for avascular necrosis, a left leg condition, and a right leg condition, but did not assign specific ratings or diagnostic codes for these new grants. The Board denied TDIU and special monthly compensation (SMC) for housebound status and aid and attendance, as well as Dependents' Educational Assistance (DEA) benefits.

Special Benefit

SMC - AID & ATTENDANCE; SMC - HOUSEBOUND; TDIU

Docket No.

250124-503430

Full Decision Text

Citation Nr: A25057266
Decision Date: 07/02/25 Archive Date: 07/02/25

DOCKET NO. 250124-503430
DATE: July 2, 2025

ORDER

An effective date prior to November 14, 2019 for the grant of service connection for tinnitus is denied.

An effective date prior to November 14, 2019 for the grant of service connection for bilateral hearing loss is denied.

An effective date prior to March 17, 2020 for the grant of service connection for obstructive sleep apnea is denied.

An effective date prior to January 26, 2023 for the grant of service connection for prostate cancer is denied.

An effective date prior to August 10, 2022 for the grant of service connection for hypertension is denied.

An effective date prior to August 10, 2022 for the grant of service connection for bronchial asthma with chronic bronchitis is denied.

A disability rating in excess of 50 percent prior to November 20, 2021 for posttraumatic stress disorder (PTSD) is denied.

A disability rating in excess of 70 percent from November 20, 2021 for PTSD is denied.

A compensable disability rating for bilateral hearing loss is denied.

A disability rating in excess of 10 percent for tinnitus is denied.

An initial 10 percent disability rating, but no more, for hypertension is granted.

An initial disability rating in excess of 100 percent for prostate cancer is denied.

An initial disability rating in excess of 60 percent for bronchial asthma with chronic bronchitis is denied.

A disability rating in excess of 60 percent prior to May 11, 2021 for coronary artery disease (CAD) and atherosclerotic cardiovascular disease is denied.

A disability rating in excess of 100 percent from May 11, 2021 for CAD and atherosclerotic cardiovascular disease is denied.

Service connection for avascular necrosis is granted.

Service connection for a left leg condition is granted.

Service connection for a right leg condition is granted.

A total disability rating based on individual unemployability (TDIU) is denied.

An effective date prior to May 11, 2021 for the grant of special monthly compensation (SMC) on account of being housebound is denied.

An effective date prior to May 11, 2021 for the grant of SMC based on a need for aid and attendance is denied.

An effective date prior to May 11, 2021 for the award of Dependents' Educational Assistance (DEA) benefits is denied.

FINDINGS OF FACT

1. On November 14, 2019, the Veteran submitted a supplemental claim seeking readjudication of his claim of entitlement to service connection for tinnitus and bilateral hearing loss, and there are no communications prior to this date reflecting an intent to file a claim of entitlement to service connection for these disabilities.

2. On March 17, 2020, the Veteran submitted an initial application for entitlement to service connection for obstructive sleep apnea, and there are no communications prior to this date reflecting an intent to file a claim of entitlement to service connection for these disabilities.

3. On January 26, 2023, VA received the Veteran's intent to file claim, which was the first communication by the Veteran indicating a desire for service connection for prostate cancer.

4. In a March 2023 rating decision, the Veteran was granted service connection for hypertension on a presumptive basis under the PACT Act (defined below) effective August 10, 2022, the date that the PACT Act became effective.

5. In an April 2024 rating decision, the Veteran was granted service connection for bronchial asthma with chronic bronchitis under the PACT Act (defined below) effective August 10, 2022, the date that the PACT Act became effective.

6. The earliest effective date for claims awarded solely under the PACT Act is August 10, 2022.

7. Prior to November 20, 2021, the Veteran's PTSD was not manifested by occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood has not been shown.

8. From November 20, 2021, the Veteran's PTSD has not been manifested by total occupational and social impairment.

9. The Veteran's bilateral hearing loss has been manifested by no worse than Level I hearing loss in his right ear and Level I hearing loss in his left ear.

10. The 10 percent disability rating that is currently in effect is the maximum schedular rating for tinnitus.

11. Throughout the period on appeal, the Veteran's hypertension has characterized by the use of continuous medication to control; diastolic pressure predominantly 110
the Veteran's PTSD was not manifested by occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood has not been shown.

8. From November 20, 2021, the Veteran's PTSD has not been manifested by total occupational and social impairment.

9. The Veteran's bilateral hearing loss has been manifested by no worse than Level I hearing loss in his right ear and Level I hearing loss in his left ear.

10. The 10 percent disability rating that is currently in effect is the maximum schedular rating for tinnitus.

11. Throughout the period on appeal, the Veteran's hypertension has characterized by the use of continuous medication to control; diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more have not been shown.

12. The 100 percent disability rating that is currently in effect is the maximum schedular rating for prostate cancer.

13. The Veteran's bronchial asthma with chronic bronchitis has not been manifested by a Forced Expiratory Volume in One Second (FEV-1) of less than 40 percent of the predicted value, a ratio of FEV-1 to Forced Vital Capacity (FVC) (FEV-1/FVC) of less than 40 percent, more than one asthma attack per week with episodes of respiratory failure, the daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications, chronic respiratory failure with carbon dioxide retention, cor pulmonale, or the requirement of tracheostomy.

14. Prior to May 11, 2021, the Veteran's CAD and atherosclerotic cardiovascular disease was not manifested by chronic congestive heart failure, the evidence did not show that a workload of 3 METs or less resulted in dyspnea, fatigue, angina, dizziness, or syncope, and the evidence did not show left ventricular dysfunction with an ejection fraction of less than 30 percent.

15. The 100 percent disability rating that is currently in effect from May 11, 2021 is the maximum schedular rating for CAD and atherosclerotic cardiovascular disease.

16. Resolving reasonable doubt in the Veteran's favor, it is at least as likely as not that his avascular necrosis, left leg condition, and right leg condition are etiologically related to his active duty service.

17. The evidence does not indicate that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities prior to May 11, 2021, and from May 11, 2021 the issue of entitlement to TDIU is moot.

18. Prior to May 11, 2021, the Veteran did not have a single disability rated as 100 percent or totally disabling with a separate disability or disabilities separately rated as 60 percent disabling, and the evidence does not show that his various disabilities left him housebound.

19. The Veteran did not have a need for aid and attendance prior to May 11, 2021.

20. Prior to May 11, 2021, the Veteran did not have a total service-connected disability that was permanent in nature and did not otherwise meet the criteria for DEA benefits.

CONCLUSIONS OF LAW

1. The criteria for an effective date prior to November 14, 2019 for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 5108, 5110, 7104; 38 C.F.R. §§ 3.156, 3.400.

2. The criteria for an effective date prior to November 14, 2019 for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 5108, 5110, 7104; 38 C.F.R. §§ 3.156, 3.400.

3. The criteria for an effective date prior to March 17, 2020 for the grant of service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 5108, 5110, 7104; 38 C.F.R. §§ 3.156, 3.400.

4. The criteria for an effective date prior to January 26, 2023 for the grant of service connection for prostate cancer have not been met. 38 U.S.C. §§ 5108, 5110, 7104; 38 C.F.R. §§ 3.156, 3.400.

5. The criteria for an effective date prior to August 10, 2022 for the grant of service connection for hypertension have not been met. 38 U.S.C. §§ 5108,
met. 38 U.S.C. §§ 5108, 5110, 7104; 38 C.F.R. §§ 3.156, 3.400.

4. The criteria for an effective date prior to January 26, 2023 for the grant of service connection for prostate cancer have not been met. 38 U.S.C. §§ 5108, 5110, 7104; 38 C.F.R. §§ 3.156, 3.400.

5. The criteria for an effective date prior to August 10, 2022 for the grant of service connection for hypertension have not been met. 38 U.S.C. §§ 5108, 5110, 7104; 38 C.F.R. §§ 3.156, 3.400.

6. The criteria for an effective date prior to August 10, 2022 for the grant of service connection for bronchial asthma with chronic bronchitis have not been met. 38 U.S.C. §§ 5108, 5110, 7104; 38 C.F.R. §§ 3.156, 3.400.

7. The criteria for a disability rating in excess of 50 percent prior to November 20, 2021 and in excess of 70 percent thereafter for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411.

8. The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.85, DC 6100.

9. The criteria for a disability rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.87, DC 6260.

10. The criteria for an initial 10 percent disability rating, but no more, for hypertension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, DC 7101.

11. The criteria for an initial disability rating in excess of 100 percent for prostate cancer have not been met. 8 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.115a, 4.115b, DC 7528.

12. The criteria for an initial disability rating in excess of 60 percent for bronchial asthma with chronic bronchitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, DC 6600-6602.

13. The criteria for a disability rating in excess of 60 percent prior to May 11, 2021 and in excess of 100 percent thereafter for CAD and atherosclerotic cardiovascular disease have not been met. 38 U.S.C. §§ 1155, 5107; C.F.R. §§ 4.1, 4.7, 4.104, DC 7005.

14. The criteria for service connection for avascular necrosis have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309.

15. The criteria for service connection for a left leg condition have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309.

16. The criteria for service connection for a right leg condition have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309.

17. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155,
for a left leg condition have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309.

16. The criteria for service connection for a right leg condition have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309.

17. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16.

18. The criteria for an effective date prior to May 11, 2021 for the grant of SMC on account of being housebound have not been met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350.

19. The criteria for an effective date prior to May 11, 2021 for the grant of SMC based on a need for aid and attendance have not been met. 38 U.S.C. §§ 1114 (s), 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.350, 3.352.

20. The criteria for an effective date prior to May 11, 2021 for the award of DEA benefits have not been met. 38 U.S.C. §§ 3501, 3510, 5113; 38 C.F.R. § 3.807.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1965 to January 1969.

The rating decisions on appeal were issued in February 2024, April 2024, May 2024, and August 2024. Therefore, the modernized review system, also known as the Appeal Modernization Act (AMA) applies. In the Veteran's April 2021 Form 10182 Notice of Disagreement, he elected the evidence submission option. Given that he elected the evidence submission option on January 24, 2025, the Board will consider all evidence submitted within 90 days of the election (i.e., April 24, 2025).

Effective Dates

In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance is either 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, it will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400(b). For supplemental claims received more than one year after the date on which the RO issues a 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).

For effective date purposes, a claim is a formal or informal written communication identifying and requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. 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. If received within one year after date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413, 421 (1999).

1. Entitlement to an effective date prior to November 14, 2019, for the grant of service connection for tinnitus

2. Entitlement to an effective date prior to November 14, 2019, for the grant of service connection for bilateral hearing loss

The Veteran contends that
claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413, 421 (1999).

1. Entitlement to an effective date prior to November 14, 2019, for the grant of service connection for tinnitus

2. Entitlement to an effective date prior to November 14, 2019, for the grant of service connection for bilateral hearing loss

The Veteran contends that effective dates prior to November 14, 2019, are warranted for the grants of service connection for tinnitus and bilateral hearing loss.

On November 14, 2019, VA received the Veteran's supplemental claim form where he indicated that he sought to have his claims of entitlement to service connection for hypertension, bronchial asthma, peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, CAD, chronic bronchitis, nervous tics, major depressive disorder, degenerative arthritis of the spine, left and right hip replacements, tinnitus, a left knee disorder, a right knee disorder, bilateral hearing loss, a right ankle disorder, and a left ankle disorder readjudicated. The RO subsequently granted his claim of entitlement to service connection for bilateral hearing loss in an August 2020 rating decision and his claim of entitlement to service connection for tinnitus in a November 2021 rating decision. Thus, the Board finds that, for effective date purposes, November 14, 2019 is the date of receipt of the Veteran's claim seeking service connection for a bilateral hearing loss and tinnitus.

Prior to the rating decision on appeal, the Veteran's claims of entitlement to service connection for tinnitus and bilateral hearing loss were most recently denied by an April 2008 rating decision. The Veteran did not appeal that rating decision, and it became final. As noted above, on November 14, 2019, he submitted a supplemental claim and the RO readjudicated the claim. Given that he submitted a supplemental claim received by VA more than one year after the RO issued notice of the April 2008 rating decision, 38 C.F.R. § 3.2500(h)(2) provides that the effective should be fixed in accordance with the date entitlement arose and be no earlier than the date of receipt of the supplemental claim.

The date of receipt of the claim for service connection having been established, the Board has also reviewed whether there is any evidence of an intent to file a claim for benefits for bilateral hearing loss and tinnitus prior to November 14, 2019. In this regard, a review of the record also fails to show that the RO received a claim or an informal written communication indicative of the Veteran's desire to seek to file a claim of service connection for these disorders or seeking readjudication of these disorders. Indeed, there are no communications regarding these claims in the year prior to this date. Because the date of the grant of service connection is the date of the claim, that is the earliest available date for the grant of service connection and the Board must deny an earlier effective date for the grants of service connection for bilateral hearing loss and tinnitus.

Additionally, the Board acknowledges that the Veteran asserted that he had symptoms of these disorders prior to November 14, 2019. However, the Board is bound by the applicable regulations. Because the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance is the date of receipt of the claim or the date entitlement arose, whichever is the later, and because the date of receipt of the Veteran's claim was November 14, 2019, an effective date earlier than this date for the grant of service connection for bilateral hearing loss and tinnitus fails as a matter of law. 38 C.F.R. § 3.400.

By virtue of the foregoing, the Veteran's claims seeking earlier effective dates for the grants of service connection for bilateral hearing loss and tinnitus are denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102.

3. Entitlement to an effective date prior to March 17, 2020, for the grant of service connection for obstructive sleep apnea

The Veteran contends that an effective
By virtue of the foregoing, the Veteran's claims seeking earlier effective dates for the grants of service connection for bilateral hearing loss and tinnitus are denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102.

3. Entitlement to an effective date prior to March 17, 2020, for the grant of service connection for obstructive sleep apnea

The Veteran contends that an effective date prior to March 17, 2020, was warranted for the grant of service connection for sleep apnea.

On March 17, 2020, VA received the Veteran's formal claim of entitlement to service connection for obstructive sleep apnea. The RO subsequently granted his claim of entitlement to service connection for obstructive sleep apnea in an October 2022 rating decision. Thus, the Board finds that, for effective date purposes, March 17, 2020 is the date of receipt of the Veteran's claim seeking service connection for obstructive sleep apnea.

The date of receipt of the claim for service connection having been established, the Board has also reviewed whether there is any evidence of an intent to file a claim for benefits for obstructive sleep apnea prior to March 17, 2020. In this regard, a review of the record also fails to show that the RO received a claim or an informal written communication indicative of the Veteran's desire to seek to file a claim of service connection for obstructive sleep apnea. Indeed, there are no communications regarding obstructive sleep apnea in the year prior to this date. Because the date of the grant of service connection is the date of the claim, that is the earliest available date for the grant of service connection and the Board must deny an earlier effective date for the grant of service connection for obstructive sleep apnea.

By virtue of the foregoing, the Veteran's claim seeking an earlier effective date for the grant of service connection for obstructive sleep apnea is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102.

4. Entitlement to an effective date prior to January 26, 2023 for the grant of service connection for prostate cancer

The Veteran contends that an effective date prior to January 26, 2023 is warranted for the grant of service connection for prostate cancer.

On January 26, 2023, VA received the Veteran's intent to file a claim seeking compensation. On February 15, 2023, VA received his claim seeking service connection for prostate cancer. Thus, the Board finds that, for effective date purposes, January 26, 2023, the date that VA received his intent to file a claim seeking compensation, is the date of receipt of the receipt of the Veteran's claim seeking service connection for prostate cancer.

The date of receipt of the claim for service connection having been established, the Board finds that an effective date prior to January 26, 2023, for the grant of service connection for prostate cancer is not warranted. Indeed, because the date of the grant of service connection is the date of the intent to file a claim, that is the earliest available date for the grant of service connection, and the Board must deny an earlier effective date for the grant of service connection for prostate cancer.

By virtue of the foregoing, the Veteran's claim seeking an earlier effective date for the grant of service connection for prostate cancer is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102.

5. Entitlement to an effective date prior to August 10, 2022, for the grant of service connection for hypertension

6. Entitlement to an effective date prior to August 10, 2022, for the grant of service connection for bronchial asthma with chronic bronchitis

The Veteran contends that effective dates prior to August 10, 2022, are warranted for the grants of service connection for
t doctrine; however, because the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102.

5. Entitlement to an effective date prior to August 10, 2022, for the grant of service connection for hypertension

6. Entitlement to an effective date prior to August 10, 2022, for the grant of service connection for bronchial asthma with chronic bronchitis

The Veteran contends that effective dates prior to August 10, 2022, are warranted for the grants of service connection for hypertension and bronchial asthma with chronic bronchitis.

On November 14, 2019, VA received the Veteran's supplemental claim form where, among other things, he indicated that he sought to have his claims of entitlement to service connection for hypertension and bronchial asthma readjudicated. The AOJ ultimately granted service connection for hypertension in a March 2023 rating decision and for bronchial asthma with chronic bronchitis in an April 2024 rating decision. The AOJ granted service connection for both hypertension and bronchial asthma with chronic bronchitis on a presumptive basis under the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), Pub. L. No. 117-168, 136 Stat. 1759 (Aug. 10, 2022).

On August 10, 2022, the PACT Act was signed into law. This is a liberalizing law which, among other additions, expanded the locations associated with presumptive exposure to herbicide agents and added hypertension and bronchial asthma as presumptive conditions related to certain toxic exposure risk activities. Therefore, service connection claims granted under the liberalizing law of the PACT Act cannot be effective earlier than August 10, 2022 (the Act's date of enactment). Indeed, the applicable regulations provide that when compensation is awarded pursuant to a liberalizing law, the effective date may be as early as the effective date of the law, if the claim is received within one year of the effective date of the law. See 38 C.F.R. § 3.114.

Therefore, the earliest possible effective date for the award of service connection for hypertension and bronchial asthma with chronic bronchitis is August 10, 2022.

The Veteran's supplemental claim was received by VA on November 14, 2019, which is prior to the effective date of the PACT Act. Thus, an effective date of August 10, 2022 is proper because the effective date of a claim granted pursuant to the PACT Act cannot be prior to August 10, 2022, the effective date of the PACT Act. See Pub. L. 117-168; see also 38 U.S.C. § 5110; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). There is no earlier open claim of service connection for hypertension and bronchial asthma with chronic bronchitis.

In this case, no other theories of service connection, including direct service connection, would provide an earlier effective date than August 10, 2022, for the grant of service connection for hypertension and bronchial asthma with chronic bronchitis because the evidence fails to show a nexus between the Veteran's active duty service and his hypertension and bronchial asthma and chronic bronchitis. Thus, the effective dates for the grants of service connection for hypertension and bronchial asthma cannot be the date of the claim.

By virtue of the foregoing, the Veteran's claims seeking earlier effective dates for the grants of service connection for hypertension and bronchial asthma with chronic bronchitis are denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102.

Increased Disability Ratings

Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities.

Where there is a question as to
evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102.

Increased Disability Ratings

Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Additionally, with respect to acquired psychiatric disabilities, although the Board typically considers only those factors contained wholly in the rating criteria, it is proper to consider factors outside the specific rating criteria when appropriate to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994).

7. Entitlement to a disability rating in excess of 50 percent prior to November 20, 2021 and in excess of 70 percent thereafter for PTSD

The Veteran contends that increased staged disability ratings are warranted for his PTSD.

Prior to November 20, 2021

Prior to November 20, 2021, the Veteran contends that a disability rating in excess of 50 percent is warranted for his PTSD.

The Veteran's PTSD has been assigned a 50 percent disability rating 38 C.F.R. § 4.130, DC 9411. In order to warrant a 70 percent disability rating, the evidence must demonstrate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, resulting in an inability to establish and maintain effective relationships, characterized by symptoms including, but not limited to, suicidal ideation, obsessional rituals that 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, and difficulty in adapting to stressful circumstances (including work or a worklike setting). 38 C.F.R. § 4.130, DC 9411.

After a review of the evidence of record, the Board determines that a disability rating in excess of 50 percent is not warranted for the Veteran's PTSD prior to November 20, 2021because the evidence does not show that his PTSD caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

Initially, the report from the February 2020 VA examination fails to show that a disability rating in excess of 50 percent is warranted for the Veteran's PTSD prior to November 20, 2021. The examination report reflects that the examiner determined that the Veteran's PTSD manifested itself through symptoms of anxiety, chronic sleep impairment, and an inability to establish and maintain effective relationships. Based upon the in-person examination, the symptoms observed during the in-person examination, and a review of the claims file, the examiner determined that the Veteran's PTSD caused occupational and social impairment with reduced reliability and productivity.

The Board concludes that the February 2020 VA examination report is entitled to significant probative weight given the examiner's in-person examination, review of the claims file, and expertise, and confirms that a disability rating in excess of 50 percent is not warranted for the Veteran's PTSD. Indeed, the examiner's opinion that the Veteran's acquired psychiatric disability caused occupational and social impairment with reduced reliability and productivity was well-founded. Specifically, the symptoms of the Veteran's PTSD did not include suicidal ideation, obsessional rituals that 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, spatial disorientation, neglect of personal appearance and hygiene, and difficulty in adapting to stressful circumstances (including work or a worklike setting).

The Board acknowledges that the examiner determined that the symptoms of the Veteran's PTSD included an inability to establish and maintain effective relationships, which is a symptom consistent with occupational
the Veteran's PTSD. Indeed, the examiner's opinion that the Veteran's acquired psychiatric disability caused occupational and social impairment with reduced reliability and productivity was well-founded. Specifically, the symptoms of the Veteran's PTSD did not include suicidal ideation, obsessional rituals that 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, spatial disorientation, neglect of personal appearance and hygiene, and difficulty in adapting to stressful circumstances (including work or a worklike setting).

The Board acknowledges that the examiner determined that the symptoms of the Veteran's PTSD included an inability to establish and maintain effective relationships, which is a symptom consistent with occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, the level of occupational and social impairment that warrants the assignment of a 70 percent disability rating. However, the Board finds that this sole symptom that is consistent with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood is not sufficient to warrant the assignment of an initial 70 percent disability rating for the Veteran's PTSD. Indeed, in addition to being the only symptom of his PTSD that is consistent with the criteria warranting the assignment of a 70 percent disability rating, inability to establish and maintain effective relationships, has not been of a sufficient severity to show that a disability rating in excess of 50 percent is warranted for his PTSD. Specifically, the evidence shows that his inability to establish and maintain effective relationships has not been of a sufficient severity to warrant the assignment of a disability rating in excess of 50 percent prior to November 20, 2021 because the evidence shows that he was able to start a company during this time period. Moreover, the examination report reflects that he had been married for a period of years. This evidence shows that his inability to establish and maintain effective relationships was not so severe that it caused occupational and social impairment with deficiencies in most areas because it shows that he could establish meaningful relationships during this time period.

In light of this clinical evaluation, the Board finds that the Veteran does not exhibit objective symptomatology sufficient to warrant the assignment of a disability rating in excess of 50 percent prior to November 20, 2021. Nevertheless, VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of a veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. See Vazquez-Claudio, 713 F.3d at 115-17.

In this case, the Board finds that the Veteran's symptoms are insufficient to warrant the assignment of an initial disability rating in excess of 50 percent for his PTSD because his treatment records also fail to show that his PTSD has manifested itself through symptoms fitting the criteria for an increased rating. Indeed, his treatment records do not show that his PTSD caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. For example, a January 2020 treatment record reflects that he was neatly groomed and casually dressed, was oriented to time and place, had a normal affect and mood that was appropriate to the examination, had a calm speech pattern, had no signs of suicidal or homicidal ideation, had organized, linear, and oriented judgment and insight, had normal thought processes, exhibited no signs of memory confusion, and had no limitations to his activities of daily living. Thus, a holistic analysis does not show that a disability rating in excess of 50 percent is warranted for his PTSD prior to November 20, 2021.

Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disabilities, the Board emphasizes that its analysis should not be limited to only these symptoms and should include consideration of any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan, 16 Vet. App. at 444. Thus, the Board has also considered the extent to which there are other indications of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

In this regard, the evidence does not indicate that a disability rating in excess of 50 percent is warranted for the Veteran's PTSD prior to November 20, 2021. Here, the evidence, including the February 2020 VA examination report shows that he was married and that he had attempted to start a new company that failed due to COVID related reasons. Therefore, the Veteran did not display
to determine the level of occupational and social impairment. Mauerhan, 16 Vet. App. at 444. Thus, the Board has also considered the extent to which there are other indications of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

In this regard, the evidence does not indicate that a disability rating in excess of 50 percent is warranted for the Veteran's PTSD prior to November 20, 2021. Here, the evidence, including the February 2020 VA examination report shows that he was married and that he had attempted to start a new company that failed due to COVID related reasons. Therefore, the Veteran did not display occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood even when factoring in other relevant criteria outside of the rating code. See Mauerhan, 16 Vet. App. at 444.

By virtue of the foregoing, the Board concludes that a disability rating in excess of 50 percent is not warranted for the Veteran's PTSD prior to November 20, 2021.

From November 20, 2021

From November 20, 2021, the Veteran contends that a disability rating in excess of 70 percent is warranted for his PTSD.

Since November 20, 2021, the Veteran's PTSD has been assigned a 70 percent disability rating under 38 C.F.R. § 4.130, DC 9411. In order to warrant the maximum 100 percent rating, the evidence must demonstrate total occupational and social impairment due to symptoms such as, but not limited to, 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, and/or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411.

After a review of the evidence of record, the Board determines that a disability rating in excess of 70 percent is not warranted for the Veteran's PTSD from November 20, 2021 because the evidence does not show that his depressive disorder causes total occupational and social impairment.

Initially, the November 2021 VA examination report fails to show that a disability rating in excess of 70 percent is warranted for the Veteran's depressive disorder due to chronic pain disorder. The examination report reflects that the examiner determined that the Veteran's depressive disorder due to chronic pain disorder manifested itself through symptoms of anxiety, suspiciousness, chronic sleep impairment, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner also observed that the Veteran was calm and relaxed during the interview, had speech that was characterized by a fast rate, long duration, and short latencies, and was somewhat guarded in his responses. Based upon the foregoing, the examiner opined that the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood.

The Board concludes that the November 2021 VA examination report is entitled to significant probative weight given the examiner's in-person examination, review of the claims file, and expertise, and confirms that a disability rating in excess of 70 percent is not warranted for the Veteran's PTSD from November 20, 2021. Indeed, the examiner's opinion that the Veteran's acquired psychiatric disability caused occupational and social impairment with reduced reliability and productivity was well-founded. Specifically, the symptoms of the Veteran's PTSD did not include gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, that he was a persistent danger of hurting himself or others, an intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, his own occupation, or his own name.

In light of this clinical evaluations, the Board finds that the Veteran does not exhibit symptomatology sufficient to warrant the assignment of a 100 percent disability rating for his PTSD from November 20, 2021. Nevertheless, VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of a veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. See Vazquez-Claudio, 713 F.3d at 115-17.

In this case, the Board finds that
his own occupation, or his own name.

In this case, the Board finds that the Veteran's symptoms are insufficient to warrant the assignment of a disability rating in excess of 70 percent for his PTSD because his treatment records also fail to show that his PTSD has manifested itself through symptoms fitting the criteria for an increased rating. Indeed, his treatment records do not show that his PTSD caused total occupational and social impairment. For example, a December 2022 treatment record reflects that he had fair grooming and hygiene, was dressed appropriately to the weather and circumstance, was alert, calm, and cooperative, made fair eye contact without abnormal movement, had speech at a normal rate, rhythm, and volume, indicated that life was good, had a euthymic affect, had linear, logical, and goal directed thought processes, denied suicidal ideation, homicidal ideation, and auditory or visual hallucinations, was alert and oriented to time, person, and place, and exhibited fair insight and judgment. Thus, a holistic analysis does not show that an initial disability rating in excess of 50 percent is warranted for his PTSD.

Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disabilities, the Board emphasizes that its analysis should not be limited to only these symptoms and should include consideration of any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan 16 Vet. App. at 444. Thus, the Board has also considered the extent to which there are other indications of total occupational and social impairment, such as gross impairment of the thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name.

In this regard, the evidence does not indicate that a disability rating in excess of 70 percent is warranted for the Veteran's PTSD from November 20, 2021. Here, the evidence, including the February 2020 VA examination report shows that he was married, and a December 2022 treatment record reflects that he had a strong support system with family and friends. Therefore, the Veteran did not display occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood even when factoring in other relevant criteria outside of the rating code. See Mauerhan, 16 Vet. App. at 444.

By virtue of the foregoing, the Board concludes that a disability rating in excess of 70 percent is not warranted for the Veteran's PTSD from November 20, 2021.

8. Entitlement to an initial compensable disability rating for hypertension

The Veteran contends that an initial compensable disability rating is warranted for his hypertension.

The Veteran's hypertension has been assigned an initial noncompensable disability rating under 38 C.F.R. § 4.104, DC 7101. Under the applicable rating criteria, a 10 percent rating is applicable when evidence shows diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, DC 7101. A 20 percent rating requires diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. Higher disability ratings require diastolic pressure of predominantly 120 or more. Id.

Based on the evidence of record, the Board determines that an initial 10 percent disability rating, but no more, is warranted for the Veteran's hypertension. Specifically, although the October 2022 VA examination report reflects that the Veteran had blood pressure readings of 140/70, 140/70, and 138/68, the examination report also reflects that his treatment plan for hypertension included taking continuous medication.

On the basis of the need for continuous medication, the Board finds that an initial 10 percent disability rating is warranted for the Veteran's hypertension. However, the evidence fails
or; systolic pressure predominantly 200 or more. Higher disability ratings require diastolic pressure of predominantly 120 or more. Id.

On the basis of the need for continuous medication, the Board finds that an initial 10 percent disability rating is warranted for the Veteran's hypertension. However, the evidence fails to show that a disability rating in excess of 10 percent is warranted for his hypertension because the evidence fails to show that his diastolic pressure has been predominantly 110 or more or that his systolic pressure has been predominantly 200 or more. Specifically, the October 2022 VA examination report does not reflect that the Veteran's diastolic pressure has been predominantly 110 or more or that his systolic pressure has been predominantly 200 or more given that his blood pressure readings were 140/70, 140/70, and 138/68. The treatment records also do not show that his diastolic pressure has been predominantly 110 or more or that his systolic pressure has been predominantly 200 or more. Indeed, a November 2021 treatment record shows a blood pressure reading of 162/80, and October 2024 treatment records show blood pressure readings of 125/58, 135/61, 127/59, 132/56, 141/61, 137/59, 123/59, 129/63, 129/63, 129/63, 129/61, 112/54, and 118/63. Accordingly, the evidence fails to show that a disability rating in excess of 10 percent is warranted for the Veteran's hypertension.

By virtue of the foregoing, the Board concludes that an initial 10 percent disability rating, but no more, is warranted for the Veteran's hypertension.

9. Entitlement to an initial disability rating in excess of 60 percent for bronchial asthma with chronic bronchitis

The Veteran contends that an initial disability rating in excess of 60 percent is warranted for his bronchial asthma with chronic bronchitis.

The Veteran's bronchial asthma with chronic bronchitis has been assigned an initial 60 percent disability rating under 38 C.F.R § 4.97, DC 6600-6602. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. Thus, the Veteran's bronchial asthma with chronic bronchitis has been characterized as chronic bronchitis and rated under DC 6602, which addresses bronchial asthma. In order for the maximum 100 percent disability rating to be warranted under DC 6602, the evidence must show FEV-1 less than 40 percent predicted, or FEV-1/FVC of less than 40 percent, or more than one asthma attack per week with episodes of respiratory failure, or asthma that requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications.

After a review of the evidence of record, the Board concludes that an initial disability rating in excess of 60 percent is not warranted for the Veteran's bronchial asthma with chronic bronchitis. Specifically, the report from the June 2023 VA examination does not show a FEV-1 of less than 40 percent predicted, a FEV-1/FVC of less than 40 percent, more than one asthma attack per week with episodes of respiratory failure, or asthma that requires daily use of systemic high dose corticosteroids or immuno-suppressive medications. To the contrary, the examination report reflects the use of low dose corticosteroids and that he had not had any asthma attacks with episodes respiratory failure in the 12 month period preceding the examination. Moreover, a December 2022 treatment reflects that pulmonary function testing was preformed and showed a FEV-1 of 72 percent predicted and a FEV-1FVC of 79 percent predicted. Additionally, an August 2023 pulmonary function test reflected a FEV-1 of 44.71 percent predicted and a March 2024 pulmonary function test revealed a FEV-1 of 58.5 percent predicted and FEV-1/FVC of 82.9 percent predicted. Accordingly, an initial disability rating in excess of 60 percent is not warranted for the bron
corticosteroids and that he had not had any asthma attacks with episodes respiratory failure in the 12 month period preceding the examination. Moreover, a December 2022 treatment reflects that pulmonary function testing was preformed and showed a FEV-1 of 72 percent predicted and a FEV-1FVC of 79 percent predicted. Additionally, an August 2023 pulmonary function test reflected a FEV-1 of 44.71 percent predicted and a March 2024 pulmonary function test revealed a FEV-1 of 58.5 percent predicted and FEV-1/FVC of 82.9 percent predicted. Accordingly, an initial disability rating in excess of 60 percent is not warranted for the bronchial asthma with chronic bronchitis under 38 C.F.R. § 4.97, DC 6602.

The Board notes that an initial disability rating in excess of 60 percent is also not warranted under 38 C.F.R. § 4.97, DC 6600. In order for the maximum 100 percent disability rating to be warranted under DC 6600, the evidence must show FEV-1 less than 40 percent of predicted value, FEV-1/FVC less than 40 percent, Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40 percent predicted, or maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or cor pulmonale, or right ventricular hypertrophy, or pulmonary hypertension (shown by echo or cardiac catheterization), or episodes of acute respiratory failure, or that outpatient oxygen therapy is required. As set forth above, the evidence does not show a FEV-1 less than 40 percent of predicted value or a FEV-1/FVC less than 40 percent. The December 2022 treatment record also reflects a DLCO in excess of 40 percent predicted given that pulmonary function testing showed that his DLCO was 79 percent predicted. The evidence, including the June 2023 VA examination report also does not show cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, respiratory failure, or that the Veteran required outpatient oxygen therapy for his respiratory condition. Therefore, the evidence also does not show that he meets the criteria for a disability rating in excess of 60 percent for his bronchial asthma with chronic bronchitis under 38 C.F.R. § 4.97, DC 6600.

By virtue of the foregoing, the Board concludes that an initial disability rating in excess of 60 percent is not warranted for the Veteran's bronchial asthma with chronic bronchitis.

10. Entitlement to a compensable disability rating for bilateral hearing loss

The Veteran contends that a compensable disability rating is warranted for his bilateral hearing loss.

In addition to the principles set forth above, the assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiological testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Ratings for hearing loss, which range from noncompensable to 100 percent, are based on an organic impairment of hearing acuity as demonstrated by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure-tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (Hz). The degree of disability from service-connected hearing loss is rated based on 11 auditory acuity levels with Level I, representing essentially normal acuity, through level XI, representing profound deafness. See 38 C.F.R. § 4.85. Additionally, the schedule takes into account the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. Martinak v. Nicholson, 21 Vet. App. 447 (2007).

An alternative rating method may be used when the pure-tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hz) is 55 decibels (dB) or more, or when the pure-tone threshold is 30 dB or less at 1,000 Hz and 70 dB or more at 2,000 Hz. 38 C.F.R. § 4.86. VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa based on whichever results in the higher numeral. Id.

In hearing loss rating cases, an examination for VA compensation purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure
specified frequencies (1,000, 2,000, 3,000, and 4,000 Hz) is 55 decibels (dB) or more, or when the pure-tone threshold is 30 dB or less at 1,000 Hz and 70 dB or more at 2,000 Hz. 38 C.F.R. § 4.86. VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa based on whichever results in the higher numeral. Id.

The Veteran has been assigned a noncompensable disability rating for his service-connected hearing loss under 38 C.F.R. § 4.85, DC 6100. In order for a compensable disability rating to be warranted, the evidence must show at least Level III hearing loss in the better ear and Level IV hearing loss in the poorer ear. Id.

After a review of the evidence of record, the Board finds that a compensable disability rating is not warranted for the Veteran's bilateral hearing loss because the clinical evidence fails to show that he had sufficient hearing loss to warrant the assignment of a compensable rating. Specifically, on the authorized audiological evaluation in August 2020, pure-tone thresholds, in decibels, were as follows:

HERTZ

1000 2000 3000 4000 Average

RIGHT 30 20 35 45 32.5

LEFT 30 25 40 40 33.75

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. Applying these values to Table VI, the Veteran exhibits Level I hearing loss in his right ear and Level I hearing loss in his left ear. When applying these levels to Table VII, a compensable disability rating is not warranted for his bilateral hearing loss based on the findings from the August 2020 audiological evaluation.

Finally, the Veteran's treatment records do not support a compensable disability rating for his bilateral hearing loss. Indeed, his treatment records do not contain any audiological evaluations reflecting more significant hearing loss or controverting the results from the foregoing audiological examination.

By virtue of the foregoing, the Board concludes that aa compensable disability rating is not warranted for the Veteran's hearing loss.

11. Entitlement to a disability rating in excess of 10 percent for tinnitus

12. Entitlement to an initial disability rating in excess of 100 percent for prostate cancer

The Veteran is seeking disability ratings in excess of 10 percent for tinnitus and in excess of 100 percent for prostate cancer.

With respect to tinnitus, the Board finds that the Veteran has been assigned a 10 percent rating, which is the maximum schedular rating available for tinnitus. 38 C.F.R. § 4.87, DC 6260. Further, under DC 6260, there is no provision for assignment of an increased schedular rating or a separate 10 percent evaluation for tinnitus of each ear. See VAOPGCPREC 2-2003 (May 22, 2003) (explaining that a rating for tinnitus for each ear may not be assigned under DC 6260 or any other DC). Therefore, the Board finds that a disability rating in excess of 10 percent is not warranted for his tinnitus.

With respect to prostate cancer, the Board finds that the Veteran has been assigned a 100 percent rating, which is the maximum schedular rating available for prostate cancer. Moreover, there is no probative evidence of record or allegation in support of application of any other DC for the Veteran's service-connected prostate cancer. Therefore, no diagnostic code will be applied other than Diagnostic Code 7528. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Therefore, the Board finds that a disability rating in excess of 100 percent is not warranted for his prostate cancer.

To accord justice in the exceptional case where the criteria in VA's Rating Schedule are found to be inadequate, an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service-connected disability is warranted. 38 C.F.R. § 3.321(b)(1). Such a rating is warranted when the case presents such an unusual disability picture with related factors such as marked interference with employment as to render impractical the application of the regular schedular standards.
7528. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Therefore, the Board finds that a disability rating in excess of 100 percent is not warranted for his prostate cancer.

When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the Agency of Original Jurisdiction (AOJ) for referral to the Director of Compensation Service (Director). See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The United States Court of Appeals for Veterans Claims has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. All three criteria must be met for referral for an extraschedular rating. Id.

If the Board finds that the Veteran has not met the criteria set forth in Thun, then it is not required to remand for initial extraschedular consideration, and the increased rating claim is denied.

With respect to tinnitus, the report from the November 2021 VA examination reflects that the Veteran reported that his tinnitus was rare, sporadic, had a duration of approximately five minutes when he experienced it, was more common late at night, and that he worked regardless of his tinnitus symptoms. Thus, neither he, nor the examiner, indicated that his tinnitus impacted his ability to work. Indeed, there is no evidence that the Veteran is unable to secure or maintain employment due to his tinnitus, nor is there any evidence of frequent periods of hospitalization. Accordingly, the Board finds that such evidence does not take the Veteran's case outside the norm as to require consideration of a higher evaluation for his tinnitus on an extraschedular basis, and referral for extraschedular consideration is not warranted.

With respect to prostate cancer, the evidence fails to show that the established rating criteria were inadequate to describe the severity or symptoms of his prostate cancer. The Board acknowledges that the evidence show that the Veteran's prostate cancer was active during the period on appeal. However, the evidence fails to show unique or unusual symptomatology regarding his prostate cancer. To the extent that the medical evidence reflects symptoms, including urinary frequency and voiding dysfunction, those symptoms are contemplated by the rating schedule when a Veteran's cancer is in remission. Such symptoms are contemplated by ratings lower than 100 percent. To the extent these symptoms could warrant extraschedular consideration, the Board finds a lack of evidence of "marked" interference with employment because the evidence of record does not that his prostate cancer limited his ability to perform occupational tasks. Thus, the Board finds that the evidence does not establish a marked interference with employment creating a unique circumstance and has not shown any unusual symptoms or circumstances, and the Veteran has not asserted or indicated such. Therefore, the application of the Rating Schedule is not rendered impractical in this case.

By virtue of the foregoing, the Board concludes that disability ratings in excess of 10 percent for tinnitus and in excess of 100 percent for prostate cancer are not warranted.

13. Entitlement to a disability rating in excess of 60 percent prior to May 11, 2021 and in excess of 100 percent thereafter for CAD and atherosclerotic cardiovascular disease

The Veteran contends that increased staged ratings are warranted for his CAD and atherosclerotic cardiovascular disease.

As an initial matter, during the course of this appeal, the schedular criteria for evaluating a cardiovascular disability have been amended. Specifically, the criteria
or indicated such. Therefore, the application of the Rating Schedule is not rendered impractical in this case.

By virtue of the foregoing, the Board concludes that disability ratings in excess of 10 percent for tinnitus and in excess of 100 percent for prostate cancer are not warranted.

13. Entitlement to a disability rating in excess of 60 percent prior to May 11, 2021 and in excess of 100 percent thereafter for CAD and atherosclerotic cardiovascular disease

The Veteran contends that increased staged ratings are warranted for his CAD and atherosclerotic cardiovascular disease.

As an initial matter, during the course of this appeal, the schedular criteria for evaluating a cardiovascular disability have been amended. Specifically, the criteria pertaining to CAD under 38 C.F.R. § 4.104, DC 7005, were amended effective November 14, 2021. See 86 Fed. Reg. 54089 (September 30, 2021).

Where a law or regulation changes during the pendency of a claim for an increased disability rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to the enactment of the new rule. VAOPGCPREC 07-03 (November 19, 2003).

However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled in part, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Given that the Veteran's claim was received prior to the effective date of the regulation changes, the Board must consider the ratings for the Veteran's coronary artery disease under both the pre-amended and revised rating criteria and must apply the pre-amended rating criteria if the result is more favorable to the Veteran. Id.

In this case, the amended criteria provide less criteria under which the Veteran can receive an increased rating. Therefore, the pre-amended criteria are more favorable and will be applied.

Prior to May 11, 2021

Prior to May 11, 2021, the Veteran's CAD and atherosclerotic cardiovascular disease has been assigned a 60 percent disability rating under 38 C.F.R.§ 4.104, DC 7005. Under the pre-amended criteria of DC 7005, a disability rating in excess of 60 percent is warranted for coronary artery disease when the evidence shows:

" Chronic congestive heart failure (100 percent);

" A workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope (100 percent); or

" Left ventricular dysfunction with an ejection fraction of less than 30 percent.

38 C.F.R. § 4.104, DC 7005.

After a review of the evidence of record, the Board finds that a disability rating in excess of 60 percent prior to May 11, 2021 is not warranted for the Veteran's coronary artery disease.

Here, the February 2020 VA examination report does not show that a disability rating in excess of 60 percent is warranted for the Veteran's CAD and atherosclerotic cardiovascular disease prior to May 11, 2021. Specifically, the examination report reflects that the Veteran had not had congestive heart failure, that during METs testing he denied experiencing symptoms attributable to a cardiac condition with any level of physical activity, and that an echocardiogram showed a left ventricular ejection fraction of 50 percent. Additionally, no treatment records show chronic congestive heart failure, that a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent prior to May 11, 2021.

By virtue of the foregoing, a disability rating in excess of 60 percent is not warranted for the Veteran's CAD and atherosclerotic cardiovascular disease prior to May 11, 2021.

From May 11, 2021

Since May 11, 2021, the Veteran's CAD and atherosclerotic cardiovascular disease has been assigned a 100 percent disability rating, which is the
, no treatment records show chronic congestive heart failure, that a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent prior to May 11, 2021.

By virtue of the foregoing, a disability rating in excess of 60 percent is not warranted for the Veteran's CAD and atherosclerotic cardiovascular disease prior to May 11, 2021.

From May 11, 2021

Since May 11, 2021, the Veteran's CAD and atherosclerotic cardiovascular disease has been assigned a 100 percent disability rating, which is the maximum schedular rating available for CAD under DC 7005. Moreover, there is no probative evidence of record or allegation in support of application of any other DC for the Veteran's service-connected CAD with atherosclerotic cardiovascular disease. Therefore, no diagnostic code will be applied other than Diagnostic Code 7528. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Therefore, the Board finds that a disability rating in excess of 100 percent is not warranted for his CAD and atherosclerotic cardiovascular disease.

The Board also finds that referral for extraschedular consideration for the Veteran's CAD is not warranted. Here, the May 2021 VA examination report reflects that he had not had any non-surgical or surgical procedures for the treatment of a heart condition, that he had not had any other hospitalizations for the treatment of heart conditions, and that METs testing showed dyspnea at a level of more than seven METs, but less than 10 METs, which is the level that has been found to be consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, and jogging. The examination report also shows that the examiner determined that the Veteran's heart condition did not have any impact on his ability to work. The January 2023 VA examination report also reflects that the Veteran had not had any non-surgical or surgical procedures for the treatment of a heart condition, had not had any other hospitalizations for the treatment of a heart condition, and that METs testing showed that a level of more than three METs, but less than five METs, resulted in breathlessness, which is the level that has been found to be consistent with activities such as light yard work, mowing the lawn, and brisk walking. The examination report also noted that he was retired, but that the functional impact of his CAD would be zero to one week of work time last in the preceding 12 months.

Additionally, more recent treatment records, including a March 2024 treatment record reflect a left ventricular ejection fraction of 50 to 55 percent. Accordingly, the evidence does not show that the schedular criteria are inadequate to describe the severity and symptoms of the Veteran's CAD and his case does not present other indicia of an exceptional or unusual disability picture, such as "marked" interference with employment or frequent periods of hospitalization attributable to his CAD with atherosclerotic cardiovascular disease.

By virtue of the foregoing, the Board concludes that a disability rating in excess of 100 percent is not warranted for the Veteran's CAD and atherosclerotic cardiovascular disease from May 11, 2021.

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).

Certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year from separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. Id. Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a).

14. Entitlement to service connection
App. 498, 505 (1995).

14. Entitlement to service connection for avascular necrosis

15. Entitlement to service connection for a left leg condition

16. Entitlement to service connection for a right leg condition

The Veteran contends that service connection is warranted for avascular necrosis, a left leg condition, and a right leg condition.

After a review of the evidence of record, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for avascular necrosis, a left leg condition, and a right leg condition. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), (d), 3.304, 3.307, 3.309.

With respect to avascular necrosis, the evidence includes the report from the June 2023 VA examination. The examination report reflects that the Veteran's avascular necrosis was at least as likely as not related to his exposure to toxic herbicide agents during his service in Vietnam. The Board finds that this opinion is probative and establishes that the evidence is at least in equipoise that the Veteran's avascular necrosis is etiologically related to his active duty service.

With respect to his left leg and right leg conditions, the July 2023 VA examination report notes that his claimed bilateral leg condition was a separate condition from diabetic peripheral neuropathy. That finding, in conjunction with, the opinion set forth in the June 2023 VA examination report that the Veteran's leg conditions had been caused by his exposure toxic herbicide agents during his active duty service shows that the evidence is at least in equipoise that his left leg and right leg conditions are etiologically related to his active duty service.

By virtue of the foregoing, the Board concludes that service connection is warranted for avascular necrosis, a left leg condition, and right leg condition.

TDIU

Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). The Board must consider if the Veteran can obtain employment of more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce to be the poverty threshold for one person. See Ray v. Wilkie, 31 Vet. App. 58 (2019).

The Board should also consider whether given the Veteran's history, education, skill, and training, in conjunction with the Veteran's physical ability and mental ability, he can perform the type of activities required by the occupation at issue. Id. Moreover, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify TDIU. 38 C.F.R. §§ 3.341(a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

A total disability rating for compensation purposes may be assigned on the basis of "individual unemployability," or when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one such disability, it must be rated at 60 percent or more; 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
alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

If a veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993).

Entitlement to a TDIU is a legal determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019).

17. Entitlement to TDIU

The Veteran contends that he is entitled to TIU from June 14, 2015. Specifically, he contends that TDIU is warranted because he last performed substantial gainful employment in 1990. He further contends that the business that he started in 2019, which operated until approximately 2022, constituted marginal employment because he was unpaid in his position of chairman for that company. He contends that he was unable to secure or follow a substantially gainful occupation because he was unable to walk and stand for prolonged periods, experienced difficulty with climbing stairs, and had difficulty hearing others due to his service-connected disabilities. He also contends he could not secure or follow substantially gainful employment because his PTSD and bilateral diabetic peripheral neuropathy negatively impacted his concentration and that his PTSD caused him to be unable to cooperate with coworkers.

As an initial matter, the Board notes that from May 11, 2021, and from March 25, 2019, the Veteran has been granted special monthly compensation under 38 U.S.C. § 1114(s). Accordingly, the Veteran's entitlement to TDIU from May 11, 2021 to the present is moot.

Thus, the issue for the Board is whether TDIU is warranted prior to May 11, 2021. Here, the Board notes that the AOJ made favorable finding that the Veteran has met the schedular requirements for TDIU since June 14, 2015 because his CAD and atherosclerotic cardiovascular disease has been assigned a 60 percent disability rating since that date.

Notwithstanding that the Veteran met the schedular requirements for TDIU prior to May 11, 2021, TDIU is not warranted because the Veteran's service-connected disabilities did not prevent him from securing or following a substantially gainful occupation prior to May 11, 2021. See 38 C.F.R. § 4.16(b). Indeed, the evidence does not show that the Veteran's service-connected CAD and atherosclerotic cardiovascular disease, PTSD, bilateral lower extremity diabetic peripheral neuropathy involving the sciatic and femoral nerves, type II diabetes mellitus, residuals of a right great toe fracture, tinnitus, and bilateral hearing loss prevented him from securing or following a substantially gainful occupation prior to May 11, 2021.

Specifically, the November 2016 Foot Conditions VA examination report reflects that the examiner determined that his residuals of a right great toe fracture did not impact his ability to perform any type of occupational task. The January 2020 Foot Conditions VA examination report reflects that the Veteran's residuals of a right great toe fracture caused functional impact to the extent that they limited him in prolonged standing, walking, and weightbearing, which the examiner indicated could impact physical work, but not sedentary work. The Board acknowledges that some treatment records also show difficulties ambulating, however, other treatment records, including a January 2020 treatment record, reflect
him from securing or following a substantially gainful occupation prior to May 11, 2021.

Specifically, the November 2016 Foot Conditions VA examination report reflects that the examiner determined that his residuals of a right great toe fracture did not impact his ability to perform any type of occupational task. The January 2020 Foot Conditions VA examination report reflects that the Veteran's residuals of a right great toe fracture caused functional impact to the extent that they limited him in prolonged standing, walking, and weightbearing, which the examiner indicated could impact physical work, but not sedentary work. The Board acknowledges that some treatment records also show difficulties ambulating, however, other treatment records, including a January 2020 treatment record, reflect that he was able to walk fine without an assistive device.

The February 2020 PTSD VA examination report reflects that the symptoms of his PTSD included anxiety, chronic sleep impairment, and an inability to establish and maintain effective relationships. The examination report also reflects that the examiner determined that his PTSD caused occupational and social impairment with reduced reliability and productivity. Treatment records, including a January 2020 treatment record, also reflect assessments of his PTSD. The January 2020 treatment record reflects that he was neatly groomed and casually dressed, was oriented to time and place, had a normal affect and mood that was appropriate to the examination, had a calm speech pattern, had no signs of suicidal or homicidal ideation, had organized, linear, and oriented judgment and insight, had normal thought processes, exhibited no signs of memory confusion, and had no limitations to his activities of daily living.

The February 2020 Diabetic Sensory-Motor Peripheral Neuropathy VA examination report reflects that his bilateral lower extremity diabetic peripheral neuropathy involving the sciatic and femoral nerves caused only mild incomplete paralysis, mild paresthesias and/or dysesthesias, and mild numbness.

The February 2020 Heart Conditions VA examination report reflects that the Veteran denied experiencing symptoms attributable to a cardiac condition with any level of physical activity and that his CAD with atherosclerotic cardiovascular disease had no functional impact.

The February 2020 Diabetes Mellitus VA examination report reflects that the Veteran's type II diabetes mellitus did not cause any functional impact.

The August 2020 Hearing Loss and Tinnitus VA examination report reflects that the Veteran had only Level I hearing loss in both ears and that he reported that the functional impact of his bilateral hearing loss was that he often had to ask people to repeat what they had said. The August 2020 VA examiner indicated that his hearing loss had no functional impact. The November 2021 VA examiner indicated that his tinnitus caused functional impact but did not identify the specific functional impact that it caused.

This evidence does not show that his service-connected disabilities prevented the Veteran from securing or following a substantially gainful occupation prior to May 11, 2021. Indeed, foregoing symptoms of his service-connected disabilities and the functional impact caused by his service-connected disabilities do not show that he was prevented from performing the tasks of either sedentary or non-sedentary occupations. Although his PTSD was found to cause occupational and social impairment with reduced reliability and productivity due to symptoms such as anxiety, chronic sleep impairment, and an inability to establish and maintain effective relationships, these symptoms alone do not demonstrate that the Veteran was unable to secure or follow a substantially gainful occupation because other evidence, including treatment records, showed that he had organized, linear, and oriented judgment and insight, had normal thought processes, exhibited no signs of memory confusion, and had no limitations to his activities of daily living. The lack of limitations to his memory, thought processes, and activities of daily living confirm that the symptoms of his PTSD would not prevent him from securing or following a substantially gainful occupation.

The Board acknowledges that the Veteran asserts that he had not had substantially gainful employment since 1990. Here, the evidence shows that he worked in the transportation business and owned a consulting company, as a principle. Indeed, the February 2020 PTSD VA examination report reflects that he worked as a trader and ran a shipping company for 35 years, serving as its chairman. His work experience as a chairman of a shipping company for 35 years shows that he had numerous skills that could be transferred to other sedentary jobs. Thus, the Veteran's work history also does not show that his service-connected disabilities prevented him from securing or following a substantially gainful occupation prior to May 11, 2021.

Moreover, the Board finds that the clinical evidence is sufficient for the Board to make its own conclusions. Geib, 733 F.3d at 1354 (applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner). In this regard, the Board also notes that despite
a shipping company for 35 years, serving as its chairman. His work experience as a chairman of a shipping company for 35 years shows that he had numerous skills that could be transferred to other sedentary jobs. Thus, the Veteran's work history also does not show that his service-connected disabilities prevented him from securing or following a substantially gainful occupation prior to May 11, 2021.

Moreover, the Board finds that the clinical evidence is sufficient for the Board to make its own conclusions. Geib, 733 F.3d at 1354 (applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner). In this regard, the Board also notes that despite the Veteran's statements that his service-connected disabilities, and in particular, his PTSD, bilateral hearing loss, tinnitus, and bilateral lower extremity diabetic peripheral neuropathy, have prevented him from working, the most probative evidence, including the reports from the relevant VA examinations, does not support a finding that he is entitled to TDIU prior to May 11, 2021.

By virtue of the foregoing, the Veteran's TDIU claim is denied.

SMC

18. Entitlement to an effective date prior to May 11, 2021, for the grant of SMC on account of being housebound

The Veteran contends that an effective date prior to May 11, 2021, is warranted for the grant of SMC on account of being housebound.

SMC on account of being housebound is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350(i).

Here, the Veteran does not meet the schedular criteria for SMC on account of being housebound prior to May 11, 2021 given that the Veteran denied TDIU herein and his CAD and atherosclerotic cardiovascular disease was not rated 100 percent disabling until May 11, 2021. The evidence also does not show that the Veteran's service-connected disabilities substantially confined the Veteran to his dwelling and the immediate premises or that he was institutionalized. Indeed, the Veteran's treatment records, including an October 2020 treatment record, reflect that he did not need support with activities of daily living.

By virtue of the foregoing, the Board concludes that an effective date prior to May 11, 2021 is not warranted for the grant of SMC on account of being housebound.

19. Entitlement to an effective date prior to May 11, 2021, for the grant of SMC based on a need for aid and attendance

The Veteran contends that an effective date prior to May 11, 2021, is warranted for the grant of SMC based on a need for aid and attendance.

"Special monthly compensation" is payable to a person who is permanently bedridden or so helpless as a result of service-connected disability that he is in need of the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). When determining the need for regular aid and attendance, consideration is given to the inability of a claimant to dress or undress him or herself, or to keep him or herself ordinarily clean and presentable; the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); the inability of a claimant to feed him or herself through loss of coordination of the upper extremities or through extreme weakness; the inability to attend to the wants of nature; or the incapacity, physical or mental, which requires care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a).

It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a
this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); the inability of a claimant to feed him or herself through loss of coordination of the upper extremities or through extreme weakness; the inability to attend to the wants of nature; or the incapacity, physical or mental, which requires care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a).

It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions that the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there is a constant need. See Turco v. Brown, 9 Vet. App. 222 (1996).

The Court has held that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley v. Peake, 22 Vet. App. at 280 (2008).

In a June 2023 rating decision, the AOJ granted SMC based on aid and attendance on account of the increase of the disability rating of the Veteran's CAD with atherosclerotic cardiovascular disease to 100 percent effective May 11, 2021, which was granted in the June 2023 rating decision, and the additional service-connected disabilities of residuals of a right great toe fracture, left lower extremity diabetic peripheral neuropathy involving the femoral nerve, PTSD, right lower extremity diabetic peripheral neuropathy involving the femoral nerve, right lower extremity peripheral neuropathy involving the sciatic nerve, tinnitus, left lower extremity diabetic peripheral neuropathy involving the sciatic nerve, obstructive sleep apnea, and type II diabetes mellitus, which were independently ratable at 60 percent or more from May 11, 2021.

The Veteran contends that SMC based on a need for aid and attendance is warranted from June 14, 2015 because his entitlement to SMC based on a need for aid and attendance is part of his underlying claim seeking an increased disability rating for CAD with atherosclerotic cardiovascular disease and because he has continuously pursued an increased rating for CAD with atherosclerotic cardiovascular disease since June 14, 2015. He further contends that SMC based on aid and attendance is warranted from June 14, 2015 because since that date, his PTSD, CAD with atherosclerotic cardiovascular disease, and bilateral lower extremity diabetic peripheral neuropathy have prevented him from independently bathing himself and keeping himself clean and from keeping himself safe from hazards and dangers of his environment.

After a review of the evidence of record, the Board concludes that an effective date prior to May 11, 2021 is not warranted for the grant of SMC based on a need for aid and attendance. The November 2016 Foot Conditions VA examination report reflects that the examiner determined that his residuals of a right great toe fracture did not impact his ability to perform any type of occupational task. The January 2020 Foot Conditions VA examination report reflects that the Veteran's residuals of a right great toe fracture caused functional impact to the extent that they limited him in prolonged standing, walking, and weightbearing that could impact physical work, but not sedentary work. The February 2020 PTSD VA examination report reflects that the symptoms of his PTSD did not include that he was a persistent danger or hurting himself or others or neglect of his personal appearance and hygiene. The February 2020 Diabetic Sensory-Motor Peripheral Neuropathy VA examination report reflects that his bilateral lower extremity diabetic peripheral neuropathy involving the sciatic and femoral nerves caused only mild incomplete paralysis, mild paresthesias and/or dysesthesias, and mild numbness. The February 2020 Heart Conditions VA examination report reflects that the Veteran denied experiencing symptoms attributable to a cardiac condition with any level of physical activity and that his CAD with atherosclerotic cardiovascular disease had no functional impact. Moreover, the Veteran's treatment records, including an October 2020 treatment record, reflect that he did not need support with activities of daily living.

Thus, the evidence does not establish
and hygiene. The February 2020 Diabetic Sensory-Motor Peripheral Neuropathy VA examination report reflects that his bilateral lower extremity diabetic peripheral neuropathy involving the sciatic and femoral nerves caused only mild incomplete paralysis, mild paresthesias and/or dysesthesias, and mild numbness. The February 2020 Heart Conditions VA examination report reflects that the Veteran denied experiencing symptoms attributable to a cardiac condition with any level of physical activity and that his CAD with atherosclerotic cardiovascular disease had no functional impact. Moreover, the Veteran's treatment records, including an October 2020 treatment record, reflect that he did not need support with activities of daily living.

Thus, the evidence does not establish a factual need for aid and attendance prior to May 11, 2021 because the evidence does not show an inability of the Veteran to dress or undress himself, to keep him or herself ordinarily clean and presentable, a frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid, an inability of the Veteran to feed himself through loss of coordination of the upper extremities or through extreme weakness, an inability of the Veteran to attend to the wants of nature, or a physical or mental incapacity that requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his or her daily environment.

By virtue of the foregoing, the Board concludes that an effective date prior to May 11, 2021 is not warranted for SMC based on a need for aid and attendance.

DEA

20. Entitlement to an effective date prior to May 11, 2021, for the award of DEA benefits

The Veteran contends that DEA benefits are warranted prior to May 11, 2021.

With certain exceptions, effective dates relating to awards under Chapter 35 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C. § 5113.

In the case of a veteran who is alive, the conditions for basic eligibility for DEA benefits include: (1) the veteran's discharge from service under conditions other than dishonorable; and (2) the veteran has a permanent total service-connected disability. 38 C.F.R. § 3.807(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a). Permanence of disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). The term "total disability permanent in nature" for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based on impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C. § 3501(a)(7).

After a review of the evidence of record, the Board finds that an effective date prior to May 11, 2021 is not warranted for the grant of DEA benefits. The Veteran was awarded eligibility to DEA effective May 22, 2021, based upon a finding that he currently had a total service-connected disability that was permanent in nature. Subsequently, in a February 2024 rating decision, he was granted the earlier effective date of May 11, 2021 for his DEA benefits based upon a finding that his CAD and atherosclerotic cardiovascular disease was a permanent total service-connected disability from that date.

Prior to May 11, 2021, the Veteran did not have a total service-connected disability that was permanent in nature. As discussed herein, the Veteran was not entitled to TDIU, and the Veteran's PTSD, CAD and atherosclerotic cardiovascular disease was not a permanent total service-connected disability prior to May 11, 2021. Indeed, the February 2020 Heart Conditions VA examination report reflects that he denied experiencing any symptoms attributable to a cardiac condition and that the examiner determined that his CAD had no impact on his ability to work. Moreover, as discussed herein, the Veteran's bilateral lower extremity diabetic peripheral neuropathy involving the sciatic and femoral nerves, type II diabetes mellitus, tinnitus, and bilateral hearing loss were not permanent total service-connected disabilities. For example, the Veteran's PTSD, which was assigned a 50 percent disability rating from November 2019, was not a total service-connected disability that was permanent and nature because the February 2020 VA examination report reflects that he could manage his financial affairs, lived with his wife, and that his PTSD symptoms included
2020 Heart Conditions VA examination report reflects that he denied experiencing any symptoms attributable to a cardiac condition and that the examiner determined that his CAD had no impact on his ability to work. Moreover, as discussed herein, the Veteran's bilateral lower extremity diabetic peripheral neuropathy involving the sciatic and femoral nerves, type II diabetes mellitus, tinnitus, and bilateral hearing loss were not permanent total service-connected disabilities. For example, the Veteran's PTSD, which was assigned a 50 percent disability rating from November 2019, was not a total service-connected disability that was permanent and nature because the February 2020 VA examination report reflects that he could manage his financial affairs, lived with his wife, and that his PTSD symptoms included only chronic sleep impairment, anxiety, and an inability to establish and maintain effective relationships. Additionally, none of the other criteria for DEA benefits under 38 C.F.R. § 3.807 have been met at any time.

By virtue of the foregoing, an effective date prior to May 11, 2021 is not warranted for the award of DEA benefits. ?

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.

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M.C., Counsel

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