Case A26040827

S. BUSH · 2026 · Case ID: A26040827

MIXED

Summary

The veteran, who served in the U.S. Navy from April 1994 to December 1997, appeals multiple decisions from the VA Agency of Original Jurisdiction (AOJ) concerning various conditions and effective dates. The veteran was granted service connection for herpes simplex virus type 1 (HSV-1), also known as oral herpes, based on an in-service diagnosis. The Board also granted an increased 70 percent rating for PTSD with Major Depressive Disorder (MDD), effective August 6, 2021, finding a factually ascertainable increase in symptoms within the one-year lookback period. However, the Board denied an earlier effective date for the 100 percent rating for PTSD with MDD, as the evidence did not support a 100 percent rating prior to the October 19, 2022 claim date. The claim for TDIU was also denied an earlier effective date, as the evidence did not establish unemployability prior to the November 16, 2021 claim date. The appeal for special monthly compensation (SMC) was dismissed due to a procedural defect, as no claim for SMC was ever filed or adjudicated. The Board remanded claims for fibromyalgia, hypothyroidism, migraines, multiple sclerosis, hypertension, GERD (dyspepsia), obstructive sleep apnea, PCOS, and tinnitus. These remands were based on the AOJ's failure to secure complete service treatment records (STRs) and the need for addendum opinions regarding secondary service connection to PTSD with MDD and/or obesity.

Service Branch

NAVY

Special Benefit

TDIU; SMC

Docket No.

250226-526551

Full Decision Text

Citation Nr: A26040827
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 250226-526551
DATE: April 30, 2026

ORDER

The appeal for entitlement to special monthly compensation (SMC) is dismissed.

Entitlement to service connection for herpes simplex virus type 1 (HSV-1), also known as oral herpes, is granted.

Entitlement to an effective date of August 6, 2021, but no earlier, for the award of an increased 70 percent rating for posttraumatic stress disorder (PTSD) with MDD is granted.

Entitlement to an effective date earlier than October 19, 2022 for the award of an increased 100 percent rating for PTSD with MDD is denied.

Entitlement to an effective date earlier than November 16, 2021, for the award of a total disability rating based on individual unemployability (TDIU) is denied.

REMANDED

Entitlement to service connection for fibromyalgia is remanded.

Entitlement to service connection for hypothyroidism is remanded.

Entitlement to service connection for migraines headaches, to include as secondary to service-connected PTSD with MDD, is remanded.

Entitlement to service connection for multiple sclerosis, to include as secondary to service-connected PTSD with MDD, is remanded.

Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD with MDD and/or obesity secondary to service-connected disabilities, is remanded.

Entitlement to service connection for gastroesophageal reflux disease (GERD) (claimed as dyspepsia), to include as secondary to service-connected PTSD with MDD and/or obesity secondary to service-connected disabilities, is remanded.

Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD with MDD and/or obesity secondary to service-connected disabilities, is remanded.

Entitlement to service connection for polycystic ovarian syndrome (PCOS), to include as secondary to obesity secondary to service-connected disabilities, is remanded.

Entitlement to service connection for tinnitus as secondary to service-connected PTSD with MDD is remanded.

FINDINGS OF FACT

1. A February 2004 rating decision awarded service connection for PTSD and assigned a 50 percent rating, effective August 15, 2003. The Veteran did not appeal the decision to the Board of Veterans' Appeals (Board) and new and material evidence was not received within a year of issuance of the decision.

2. On November 16, 2021, the Veteran filed an increased rating claim for her PTSD.

3. In a January 2022 rating decision, the agency of original jurisdiction (AOJ) granted an increased rating of 70 percent for service-connected PTSD, effective November 16, 2021, the date of the increased rating claim.

4. In June 2022, the Veteran filed a supplemental claim for an increased rating and earlier effective date for PTSD. On October 19, 2022, the Veteran filed a formal claim for TDIU due to her PTSD. In a March 2023 rating decision, the AOJ granted an increased 100 percent rating and combined PTSD with MDD and assigned an effective date of October 19, 2022, the date of the formal claim for a TDIU. In April 2023, the Veteran filed a supplemental claim seeking an earlier effective date for her PTSD and the AOJ denied the claim in a February 2024 rating decision. The Veteran requested higher-level review in May 2024 of the February 2024 decision and in August 2024 the AOJ continued to deny the claim.

5. On October 19, 2022, the Veteran filed a stand-alone application for entitlement to a TDIU, which included a claim of entitlement to an increased rating for PTSD.

6. In a March 2023 rating decision, the AOJ granted an increased 100 percent rating and combined PTSD with MDD and assigned an effective date of October 19, 2022, the date of the application for a TDIU and the included increased rating claim for PTSD.

7. On April 10, 2023, the Veteran filed a supplemental claim seeking an earlier effective date for PTSD with MDD, and the claim was denied in a February 2024 rating decision.

8. In May 2024, the Veteran requested higher-level review of the February 2024 rating decision and included SMC as an "inferred" issue, and in an August 2024 rating decision, the AOJ denied the earlier effective date claim for PTSD with MDD.

9. In her February 2025 VA Form 10182 Notice of Disagreement (NOD
of October 19, 2022, the date of the application for a TDIU and the included increased rating claim for PTSD.

7. On April 10, 2023, the Veteran filed a supplemental claim seeking an earlier effective date for PTSD with MDD, and the claim was denied in a February 2024 rating decision.

9. In her February 2025 VA Form 10182 Notice of Disagreement (NOD), the Veteran attempted to appeal entitlement to SMC as an "inferred" issue from the August 2024 rating decision.

10. There is no informal, formal, or inferred claim for SMC.

11. The Veteran's HSV-1, or oral herpes, had its onset during active service.

12. There is evidence of a factually ascertainable increase in disability in August 2021 for a 70 percent rating, within one year of the November 16, 2021 increased rating claim for PTSD with MDD.

13. The Veteran's entitlement to a 100 percent rating for PTSD with MDD arose after the November 16, 2021 date of claim.

14. No communication was received from the Veteran prior to November 16, 2021, that may be construed as a formal or informal claim for entitlement to a TDIU or increased rating claim for PTSD with MDD.

15. It is not factually ascertainable that the Veteran's service-connected PTSD with MDD prevented her from securing and maintaining substantial gainful employment prior to the November 16, 2021 date of claim.

CONCLUSIONS OF LAW

1. The criteria for dismissal of the appeal of the claim for entitlement to SMC are met. 38 U.S.C. § 7105; 38 C.F.R. § 3.2400, 3.2500, 20.201, 20.202.

2. The criteria for entitlement to service connection for HSV-1, or oral herpes, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for the award of an effective date of August 6, 2021, but no earlier, for the award of an increased 70 percent rating for PTSD with MDD are met. 38 U.S.C. §§ 101, 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.400, 3.2500, 3.2501, 4.130, Diagnostic Code (DC) 9411.

4. The criteria for an effective date earlier than October 19, 2022, for the award of an increased 100 percent rating for the Veteran's PTSD with MDD are not met. 38 U.S.C. §§ 101, 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.400, 3.2500, 3.2501, 4.130, DC 9411.

5. The criteria for an effective date earlier than November 16, 2021, for the award of a TDIU are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from April 1994 to December 1997. This matter comes before the Board of Veterans' Appeals (Board) from August 2024, January 2025, and February 2025 rating decisions issued by the Department of Veterans' Affairs (VA) Agency of Original Jurisdiction (AOJ).

Initially, the February 2024 rating decision denied service connection for dyspepsia, fibromyalgia, hypertension, hypothyroidism, migraines, multiple sclerosis, oral herpes, PCOS, sleep apnea, and tinnitus disabilities, and earlier effective dates for PTSD and TDIU claims. The Veteran then requested Higher-Level Review of the February 2024 rating decision, and in the August 2024 Higher-Level Review decision on appeal, the AOJ found a duty to assist error and differences in opinion
Appeals (Board) from August 2024, January 2025, and February 2025 rating decisions issued by the Department of Veterans' Affairs (VA) Agency of Original Jurisdiction (AOJ).

Initially, the February 2024 rating decision denied service connection for dyspepsia, fibromyalgia, hypertension, hypothyroidism, migraines, multiple sclerosis, oral herpes, PCOS, sleep apnea, and tinnitus disabilities, and earlier effective dates for PTSD and TDIU claims. The Veteran then requested Higher-Level Review of the February 2024 rating decision, and in the August 2024 Higher-Level Review decision on appeal, the AOJ found a duty to assist error and differences in opinion regarding the service connection claims and reverted these claims to the supplemental claim lane and further developed the claims. Thereafter, in January 2025 and February 2025 rating decisions, the AOJ continued to deny the claims for dyspepsia, fibromyalgia, hypertension, hypothyroidism, migraines, PCOS, sleep apnea, and tinnitus (January 2025) and multiple sclerosis and oral herpes (February 2025).

In her February 2025 VA Form 10182, the Veteran requested direct review of the evidence considered by the AOJ. Based upon the selection of the Direct Review option, the Board may only consider the evidence of record as of February 13, 2024 for the earlier effective date claims for PTSD and TDIU ---- the date of the initial rating decision subject to higher-level review; January 13, 2025 - the date of the rating decision that adjudicated the supplemental claims for dyspepsia, fibromyalgia, hypertension, hypothyroidism, migraines, PCOS, sleep apnea, and tinnitus; and February 24, 2025 - the date of the rating decision that adjudicated the supplemental claims for multiple sclerosis and oral herpes. See 38 C.F.R. §§ 20.301, 3.2601(f). If the Veteran submitted evidence that was added to the record after these dates for the respective disabilities, the Board did not consider it. If the Veteran wishes to have VA consider any evidence that was not considered, a supplemental claim should be submitted identifying such evidence. See 38 C.F.R. § 3.2501. However, because the Board is remanding the claims for GERD (dyspepsia), fibromyalgia, hypertension, hypothyroidism, migraines, multiple sclerosis, PCOS, sleep apnea, and tinnitus disabilities, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

In the February 2024 rating decision, the AOJ determined that the Veteran has current diagnoses of dyspepsia, multiple sclerosis, hypertension, hypothyroidism, migraines, herpes labialis (oral herpes), PCOS, sleep apnea, and tinnitus; that participation in a toxic exposure risk activity (TERA) is conceded, specifically her military personnel records show her participation in a TERA; and that there is an event of noise exposure in service based on her military occupational specialty (MOS) of dental technician, which has a low probability of hazardous military noise exposure.

Additionally in the January 2025 rating decision, the AOJ determined that the Veteran has a current diagnosis of GERD; that the primary disability, PTSD with MDD, is service-connected; that hypertension is a chronic disease which may be presumptively linked to her military service (if diagnosed and considered compensable within one year of active military service); that the Veteran has sufficient service to meet the minimum requirements for presumptive service connection, specifically her DD 214 indicates honorable active duty service for April 21,1994 to December 5,1997; and that the evidence shows that a qualifying event, injury, or disease had its onset during her service; specifically her service treatment records (STRs), dated August 15, 1997, show a complaint of tension headaches. As there is no clear and unmistakable evidence in these findings, the Board is bound by them. See 38 C.F.R. § 3.104(c).

Dismissal of Claims

1. The appeal for entitlement to special monthly compensation (SMC) is dismissed.

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d). While the Board may not dismiss the appeal for lack of jurisdiction, the Board may dismiss the appeal due to other non-jurisdictional reasons, such as a procedural defect, where the Veteran did not substantially
August 15, 1997, show a complaint of tension headaches. As there is no clear and unmistakable evidence in these findings, the Board is bound by them. See 38 C.F.R. § 3.104(c).

Dismissal of Claims

1. The appeal for entitlement to special monthly compensation (SMC) is dismissed.

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d). While the Board may not dismiss the appeal for lack of jurisdiction, the Board may dismiss the appeal due to other non-jurisdictional reasons, such as a procedural defect, where the Veteran did not substantially comply with proper claims processing rules. See Hall v. McDonough, 34 Vet. App. 329 (2021). In assessing compliance with the claims-processing rules, the Board finds waiver or forfeiture are not relevant considerations in the appeal. Id. at 334.

The Board has carefully reviewed the evidence of record and finds that the claim of entitlement to SMC is not properly before the Board and should be dismissed. The reasons follow.

The procedural history is as follows. On November 16, 2021, the Veteran filed a formal claim for an increased rating for PTSD. In a January 2022 rating decision, the AOJ increased the PTSD rating to 70 percent, effective November 16, 2021. On June 7, 2022, the Veteran filed a supplemental claim requesting an earlier effective date and increased rating for PTSD. On October 19, 2022, the Veteran filed an application for a TDIU due to PTSD and the AOJ inferred this claim to include an increased rating for PTSD. In a March 2023 rating decision, the AOJ increased the PTSD with MDD rating to 100 percent, effective October 19, 2022, the date of the formal claim for a TDIU and inferred increased rating claim for PTSD. On April 10, 2023, the Veteran filed a supplemental claim requesting an earlier effective date for the increased 100 percent rating for PTSD with MDD, and the claim was denied in a February 2024 rating decision. In May 2024, the Veteran requested higher-level review of the February 2024 rating decision and included SMC as an "inferred" issue, and in an August 2024 rating decision, the AOJ denied the earlier effective date claim for PTSD with MDD. In the introduction of the August 2024 higher-level review rating decision, the AOJ stated that they were unable to provide a higher -level review for the issue of SMC, as it had never been adjudicated and explained that they cannot perform appellate review of an issue that had not been adjudicated. The AOJ instructed the Veteran to submit VA form 21-526EZ if she wished to file a claim for this issue. No such claim was received by VA. Thereafter, in her February 2025 VA Form 10182 NOD, the Veteran attempted to appeal the issue of entitlement to SMC as an "inferred" issue from the August 2024 rating decision.

Generally, the Board has to consider VA's duty to maximize a veteran's benefits, including possible entitlement to SMC in addition to a total disability rating. See Akles v. Derwinski, 1 Vet. App. 118 (1991) (observing that entitlement to SMC is an "inferred issue" in the context of an increased rating claim that must be considered when the record shows that it may be available, even if the claimant does not place eligibility for this ancillary benefit at issue).

Here, the Board finds the SMC issue is not properly before the Board as there is no formal or informal claim of entitlement to SMC of record and therefore no SMC claim has been adjudicated by the AOJ. Additionally, the Board acknowledges the Veteran's attorney's argument that SMC is an inferred issue in this case; however the Board finds this argument to be without merit. Specifically, SMC can be an inferred issue in the context of an increased rating claim and the Veteran's current appeal before the Board does not include an increased rating claim, but rather an earlier effective date claim for PTSD with MDD. Thus, an inferred issue of SMC would not apply in this instance. See Akles, supra; see also Brown v. McDonough, No. 20-5195, 2022 LEXIS 202 (Vet. App. Feb. 14. 2022) (the veteran had not shown error in BVA's finding that the effective date for TDIU had no inherent bearing on entitlement to SMC for aid
Board finds this argument to be without merit. Specifically, SMC can be an inferred issue in the context of an increased rating claim and the Veteran's current appeal before the Board does not include an increased rating claim, but rather an earlier effective date claim for PTSD with MDD. Thus, an inferred issue of SMC would not apply in this instance. See Akles, supra; see also Brown v. McDonough, No. 20-5195, 2022 LEXIS 202 (Vet. App. Feb. 14. 2022) (the veteran had not shown error in BVA's finding that the effective date for TDIU had no inherent bearing on entitlement to SMC for aid and attendance because they are two different types of VA benefits that have different eligibility requirements) (non-precedential); Bethea v. Derwinski, 2 Vet. App. 252 (1992) (single-judge memorandum decisions may be cited or relied upon for any persuasiveness or reasoning they contain).

As the Court noted in Hall, although the Board cannot dismiss for lack of jurisdiction, it may dismiss an appeal for a procedural defect. See Hall, supra. Here, the Veteran did not file a claim for SMC at any time, and it is not an inferred claim as there is no increased rating claim currently on appeal before the Board. In the August 2024 higher-level review decision, the AOJ notified the Veteran that a SMC issue had not been adjudicated by the AOJ and instructed her to complete a VA Form 21- 526EZ should she wish to file a claim for SMC. No claim was received. Therefore, the Board finds that there is a procedural defect in the claims processing rules in this appeal and the Veteran's attempted appeal of this issue is invalid.

In sum, the Board may dismiss a procedurally defective AMA appeal if improperly docketed under claims processing rules. Id. at 333. As discussed above, the Veteran's February 2025 VA Form 10182 was not a valid notice of disagreement at the time it was filed because there was no underlying VA decision that adjudicated the SMC issue and the Veteran did not simultaneously appeal an increased rating claim, such that SMC could be an inferred issue.

Based on the foregoing, the procedurally defective AMA appeal regarding entitlement to SMC is dismissed. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (in cases where the law, and not the evidence, is dispositive, the claim should be denied because of the absence of legal merit or the lack of entitlement under the law).

The Board notes that if the Veteran wishes to pursue a claim for SMC, she is invited to file a claim on a proper form.

Service Connection

2. Entitlement to service connection for herpes simplex virus type 1 (HSV-1), also known as oral herpes, is granted.

Service connection may be established for a disability resulting from injury or disease incurred during active service. 38 U.S.C. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Generally, to establish service connection on a direct incurrence basis 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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). That is, the claimant is entitled to the benefit of the doubt when the evidence is in "approximate" balance i.e., "nearly equal" but does not require that the evidence be in exact equipoise. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Here, the Veteran seeks
439 (1995) (en banc).

Here, the Veteran seeks service connection for oral herpes which she asserts had its onset during service in 1997. See February 2025 VA examination report.

The Veteran has a current diagnosis of HSV-1 (cold sores) and herpes labialis. See February 2025 VA examination report; see also February 2024 rating decision favorable findings. Thus, element one is met.

Regarding the second and third elements of service connection, in-service incurrence of a disease or injury and nexus, the Veteran's STRs include a diagnosis of HSV-1, also known as oral herpes or herpes labialis, during service. See September 1997 STR. Additionally, the February 2025 VA examiner noted the HSV-1 as being diagnosed in 1997. As the Veteran was first diagnosed with HSV-1 during service and she has a current diagnosis of the same condition, a nexus between her current HSV-1 diagnosis and service is established. 38 C.F.R. § 3.303(a). To the extent the February 2025 VA examiner indicated that the Veteran's HSV-1 is not due to an in-service TERA is of no consequence, as the examiner did not consider the Veteran's in-service diagnosis. Thus, elements two and three of service connection are also met.

Critically, there is no competent evidence to the contrary. Accordingly, all elements are met and service connection for HSV-1, also known as oral herpes, is warranted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303.

Effective Dates

The provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). In general, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1).

An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (explaining the legislative intent to provide veterans with a one-year grace period for filing their claims); Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998).

Furthermore, according to 38 C.F.R. § 3.157(b)(1) (in effect prior for claims filed prior to March 24, 2015), receipt of a VA outpatient or hospital examination or admission to a VA hospital could be accepted as an informal claim for increased benefits" when such report relate[s] to examination or treatment of a disability for which service-connection has previously been established." 38 C.F.R. § 3.157(b)(1); see MacPhee v. Nicholson, 459 F.3d 1323, 1328 (Fed. Cir. 2006); see also Crawford v. Brown, 5 Vet. App. 33, 35-36 (1993). The date on the VA outpatient or hospital examination will be accepted as the date of claim. 38 C.F.R. § 3.159(b). When the evidence is from a private physician, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim. 38 C.F.R. § 3.157(b)(2) (in effect for claims filed prior to March 24, 2015).

The Board notes that on March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments are effective for claims filed on or after March 24, 2015. As the claim in this case was filed after this date, the amendments are applicable in this instance and will be applied to any filings after March 24, 2015.

Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015).

Further, for appeals governed by the AMA, as here, 38 C.F.R. § 3.2500(h) controls the assignment of effective dates. Under that provision, the effective date will be the date VA received a veteran's initial claim, or the date entitlement arose, whichever is later, if a veteran continuously pursues an issue by timely filing in succession any of the available review options as specified in § 3.2500(c) within one year of the issuance of the decision. 38 C.F.R. § 3.2500(h). With supplemental claims received more than one year after notice of a decision, the effective date will be fixed in accordance with the date of entitlement arose but will not be earlier than the date of receipt of the supplemental claim. 38 C.F.R. § 3.2500(h)(2).

3. Entitlement to an effective date of August 6, 2021, but no earlier, for the award of an increased 70 percent rating for PTSD with MDD is granted.

4. Entitlement to an effective date earlier than October 19, 2022 for the award of an increased 100 percent rating for PTSD with MDD is denied.

Here, the Veteran seeks an effective date of no later than November 16, 2020, for her service-connected PTSD with MDD, as her attorney argues this date is one year prior to VA's receipt of her increased rating claim for PTSD on November 16, 2021. The Veteran's attorney does not point to any evidence in the one-year lookback period to support this assertion. It is unclear from the Veteran's attorney's assertions if the Veteran is seeking earlier effective dates for both the increased 70 and 100 percent ratings for PTSD and MDD. Thus, the Board will address both claims.

By way of history, a February 2004 rating decision awarded service connection for PTSD and assigned a 50 percent rating, effective August 15, 2003
November 16, 2020, for her service-connected PTSD with MDD, as her attorney argues this date is one year prior to VA's receipt of her increased rating claim for PTSD on November 16, 2021. The Veteran's attorney does not point to any evidence in the one-year lookback period to support this assertion. It is unclear from the Veteran's attorney's assertions if the Veteran is seeking earlier effective dates for both the increased 70 and 100 percent ratings for PTSD and MDD. Thus, the Board will address both claims.

By way of history, a February 2004 rating decision awarded service connection for PTSD and assigned a 50 percent rating, effective August 15, 2003. The Veteran did not appeal that decision, and new and material evidence was not received within the one-year appeal period. Accordingly, the February 2004 rating decision became final. See 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103.

On November 16, 2021, the Veteran filed an increased rating claim for her PTSD. In a January 2022 rating decision, the AOJ granted an increased rating of 70 percent for service-connected PTSD, effective November 16, 2021, the date of the increased rating claim. In June 2022, the Veteran filed a supplemental claim for an increased rating and earlier effective date for PTSD. On October 19, 2022, the Veteran filed a stand-alone application for entitlement to a TDIU, which the AOJ inferred included a supplemental claim of entitlement to an increased rating for PTSD (which does not include the one-year lookback period). See Chisholm v. Collins, 38 Vet. App. 140 (2025). In a March 2023 rating decision, the AOJ granted an increased 100 percent rating and combined PTSD with MDD and assigned an effective date of October 19, 2022, the date of the application for a TDIU and the included increased rating claim for PTSD. In April 2023, the Veteran filed a supplemental claim seeking an earlier effective date for her PTSD with MDD and the AOJ denied the claim in a February 2024 rating decision. The Veteran requested higher-level review in May 2024 of the February 2024 decision and in August 2024 the AOJ continued to deny the claim. It is from this decision that the Veteran appeals.

Here, the Veteran submitted a formal claim for an increased rating for her PTSD on November 16, 2021. Critically, no informal (before March 24, 2015) or formal claims for an increased rating for PTSD were filed after the final February 2004 rating decision and prior to November 16, 2021. To this end, neither the Veteran nor her attorney has asserted that the Veteran filed an increased rating claim prior to November 16, 2021. Instead, her attorney argues that an effective date of November 16, 2020 is warranted as that is within one year lookback period prior to filing the formal claim on November 16, 2021. Nonetheless, the "date of claim" for her PTSD with MDD disability for effective date purposes is November 16, 2021, as she has continuously pursued her claim since that time.

The date of receipt of the claim having been established, the Board next must consider whether there is a factually ascertainable increase in her PTSD with MDD symptomatology within the one-year lookback period of her November 2021 application. 38 C.F.R. § 3.400(o)(2).

The Veteran's PTSD with MDD is currently rated pursuant to 38 C.F.R. § 4.130, DC 9400, which is rated under the General Rating Formula for Mental Disorders. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411.

A 70 percent rating is assigned when there is occupational and social impairment, with deficiencies in most areas, such
the General Rating Formula for Mental Disorders. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411.

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

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

Here, there is evidence of a factually ascertainable increase in her PTSD with MDD symptomatology within the lookback period. Specifically, in a VA treatment record dated August 6, 2021, the Veteran reported that she was having a harder time coping with stress, she was "a lot more anxious than she normally is," that she was not suicidal but had thought about suicidal a few times without plan or intent, and that she had impairment of executive function and severe lack of organization. The Court has recently held that "the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). Thus, an effective date of August 6, 2021 for her increased 70 percent rating is warranted due to an increase in severity of symptoms within the lookback period. There is no evidence of a factually ascertainable increase in PTSD with MDD symptoms in the remainder of the lookback period from November 2020 to August 6, 2021, and the Veteran's attorney points to no such evidence.

Accordingly, for reasons outlined above, entitlement to an effective date of August 6, 2021, but no earlier, for the award of an increased 70 percent rating for PTSD with MDD is granted.

Moreover, the medical evidence of record does not establish entitlement to a 100 percent rating earlier than October 19, 2022. Instead, the evidence shows the Veteran's entitlement to 100 percent disability arose after the date of claim during the January 2023 VA examination, where findings first corresponded with the criteria for a 100 percent rating. See January 2023 VA examination report (noting symptoms such as intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). Prior to this, during the November 2021 VA examination (showing symptoms that correspond to a 70 percent rating, but no higher) and during her regular course of VA treatment, the Veteran's symptoms did not more closely approximate total social and occupational impairment, and the Veteran's attorney points to no such evidence. As noted above, if the increase in disability occurred after the increased rating claim, the effective date is the date of increase. However, the Board will not disturb the AOJ's more favorable finding and award of the increased rating from October 19, 2022, the date VA received a formal claim for TDIU and inferred PTSD claim. Thus, as the date entitlement arose occurred after the date of the increased rating claim, an earlier effective date prior to October 19, 2022 for the increased rating of 100 percent for PTSD is not warranted.

Accordingly, for reasons outlined above, entitlement to an effective date of August 6, 2021, but no earlier for the award of
no such evidence. As noted above, if the increase in disability occurred after the increased rating claim, the effective date is the date of increase. However, the Board will not disturb the AOJ's more favorable finding and award of the increased rating from October 19, 2022, the date VA received a formal claim for TDIU and inferred PTSD claim. Thus, as the date entitlement arose occurred after the date of the increased rating claim, an earlier effective date prior to October 19, 2022 for the increased rating of 100 percent for PTSD is not warranted.

Accordingly, for reasons outlined above, entitlement to an effective date of August 6, 2021, but no earlier for the award of an increased 70 percent rating for anxiety PTSD with MDD disorder is granted. However, because the evidence persuasively weighs against a finding of an increased 100 percent rating prior to the November 16, 2021 claim, an earlier effective date prior to October 19, 2022 is not warranted and the appeal is denied.

5. Entitlement to an effective date earlier than November 16, 2021, for the award of a TDIU is denied.

The Veteran is seeking an effective date earlier than November 16, 2021, for award of TDIU. Specifically, the Veteran's attorney asserts that an effective date of no later than April 1, 2020 is warranted, the date the Veteran last worked full time. See May 2014 Third Party Correspondence.

TDIU is warranted when a veteran is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16(a).

Typically, the effective date of an award based on a claim for increase of compensation shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). When evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation, the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred if application is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). A claim for a TDIU rating, either expressly raised by a veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. at 447, 453 (2009).

A March 2023 rating decision awarded entitlement to a TDIU, effective November 21, 2021, the date of the increased rating claim for PTSD with MDD. As noted above, no informal (before March 24, 2015) or formal claims for an increased rating for PTSD or application for entitlement to a TDIU were filed prior to November 16, 2021. And again, neither the Veteran nor her attorney has asserted otherwise. Instead, her attorney argues that an effective date of no later than April 1, 2020 is warranted as this is the last time the Veteran worked full time and she has continuously pursued her PTSD claim, which includes the TDIU issue pursuant to Harper v. Wilkie. See Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (An appeal of the issue of an appropriate disability evaluation includes the issue of entitlement to TDI U for the entire appeal period). See May 2014 Third Party Correspondence. Thus, the "date of claim" for a TDIU for effective date purposes is November 16, 2021, the date of her increased rating claim (VA Form 21-526EZ), as part and parcel of the underlying increased rating claim for PTSD with MDD.

Thus, the last issue for the Board to consider, therefore, is whether it is factually ascertainable based on the evidence of record that she became unemployable due to her service-connected PTSD with MDD at some point during the one-year period from November 16, 2020 to November 16
disability evaluation includes the issue of entitlement to TDI U for the entire appeal period). See May 2014 Third Party Correspondence. Thus, the "date of claim" for a TDIU for effective date purposes is November 16, 2021, the date of her increased rating claim (VA Form 21-526EZ), as part and parcel of the underlying increased rating claim for PTSD with MDD.

Importantly, under 38 C.F.R. § 3.400(o)(2), the increase in disability must have occurred during the one-year period prior to the claim to receive an earlier effective date within that one-year lookback period. If the record evidence does not indicate that the Veteran became unemployable during the one-year lookback period, then, under 38 C.F.R. § 3.400(o), the November 16, 2021 date of claim is the only permissible effective date for the Veteran's TDIU award.

In this case, the evidence of record does not suggest that the Veteran became unemployable due to her only service-connected disability, PTSD with MDD, during the year prior to the November 16, 2021 date of claim. Specifically, VA treatment records prior to this date and during the one -year lookback period, do not show that her PTSD with MDD prevented her from securing and maintaining gainful employment. In fact, VA treatment records show that she was working full time at the front desk of a dentist office up until at least June 2021, contrary to her October 2022 VA Form 21-8940 which lists she last worked full time in April 2020. Additionally, although an October 7, 2021 VA treatment record indicates she stopped working at the dental office due to difficulties with her mental health, pain, and memory, it was noted that she currently worked for Door Dash doing deliveries which she "might be stopping due to difficulties with her memory," See October 2022 VA Form 21-8940 (noting last full-time employment as April 1, 2020 and no mention of Door Dash); VA treatment records (received November 2021). The Veteran has not offered information about her income from this period, nor has she or her attorney asserted that her employment with Door Dash was marginal. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991)(the duty to assist is not a one-way street.)

Thus, based on the totality of the evidence, the Board finds it is not factually ascertainable that the Veteran's service-connected PTSD with MDD prevented her from securing and maintaining substantial gainful occupation prior to November 16, 2021.

As such, the Board finds that the evidence is neither evenly balanced nor approximately so with regard to whether an effective date earlier than November 16, 2021, for the grant of TDIU is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application). Thus, entitlement to an effective date earlier than November 16, 2021 for the award of a TDIU is denied.

REASONS FOR REMAND

6. Entitlement to service connection for fibromyalgia is remanded.

7. Entitlement to service connection for hypothyroidism is remanded.

8. Entitlement to service connection for migraines headaches, to include as secondary to service-connected PTSD with MDD, is remanded.

9. Entitlement to service connection for multiple sclerosis, to include as secondary to service-connected PTSD with MDD, is remanded.

10. Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD with MDD and/or obesity secondary to service-connected disabilities, is remanded.

11. Entitlement to service connection for GERD (claimed as dyspepsia), to include as secondary to service-connected PTSD with MDD and/or obesity secondary to service-connected disabilities, is remanded

12. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD with MDD and/or obesity secondary
headaches, to include as secondary to service-connected PTSD with MDD, is remanded.

9. Entitlement to service connection for multiple sclerosis, to include as secondary to service-connected PTSD with MDD, is remanded.

10. Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD with MDD and/or obesity secondary to service-connected disabilities, is remanded.

12. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD with MDD and/or obesity secondary to service-connected disabilities, is remanded.

13. Entitlement to service connection for PCOS, to include as secondary to obesity secondary to service-connected disabilities, is remanded.

14. Entitlement to service connection for tinnitus, to include as secondary to service-connected PTSD with MDD is remanded.

Here, during the August 2024 higher-level review where the AOJ found a duty to assist error requiring further development of the claims, the AOJ specifically noted that they did not have the Veteran's full set of STRs and service personnel records (SPRs) and that steps should be taken in order to secure these records as they had not developed for records since 2004/2005. See August 2024 Higher-Level Review Return. Thereafter, additional SPRs, including copies of some service examinations, were associated with the claims file, but additional STRs were not associated with the claims file and there is no formal finding indicating the records are deemed unavailable and that further attempts would be futile. The AOJ's failure to obtain complete STRs or make a formal finding of their unavailability constitutes an error in satisfying regulatory and statutory duties, and correction of said error would have a reasonable possibility of aiding in substantiating the Veteran's claims, warranting remand.

Additionally, the Veteran has asserted and the medical evidence of record suggests her GERD, migraines, multiple sclerosis, hypertension, tinnitus, obstructive sleep apnea, and PCOS disabilities could be secondary to her service-connected PTSD with MDD and/or obesity secondary to service-connected disabilities. However, no secondary opinions on multiple sclerosis, hypertension, PCOS, or tinnitus have been secured, which constitutes a pre-decisional duty to assist error. Additionally, in opining against a secondary nexus for GERD, migraines, and obstructive sleep apnea, the VA examiners did not consider the possibility of service connection based on aggravation, warranting addendum opinions. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The record also raises the possibility of obesity due to service-connected disabilities as a risk factor for GERD, OSA, PCOS, and hypertension, which should be explored.

The matters are REMANDED for the following action:

1. Secure any outstanding service treatment records (STRs). See August 2024 Higher-Level Review Return. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159(e).

2. Then refer the claims file to an examiner for preparation of an addendum opinion as to the etiology of the Veteran's multiple sclerosis, hypertension, tinnitus, GERD, migraines, obstructive sleep apnea and PCOS. No further examination of the Veteran is necessary unless the examiner deems otherwise.

Following a complete review of the claims file, the examiner should address the following:

Is as least as likely as not (approximately 50 percent probability or nearly 50 percent probability) that:

(a) the Veteran's multiple sclerosis was caused by service-connected PTSD with MDD;

(b) the Veteran's multiple sclerosis has been aggravated (worsened) by her service-connected PTSD with MDD;

(d) the Veteran's hypertension has been aggravated (worsened) by her service-connected PTSD with MDD;

(e) the Veteran's tinnitus was caused by service-connected PTSD with MDD;

(f) the Veteran's tinnitus has been aggravated (worsened) by her service-connected PTSD with MDD;

(g) the Veteran's migraines have been aggravated (w
as not (approximately 50 percent probability or nearly 50 percent probability) that:

(a) the Veteran's multiple sclerosis was caused by service-connected PTSD with MDD;

(b) the Veteran's multiple sclerosis has been aggravated (worsened) by her service-connected PTSD with MDD;

(d) the Veteran's hypertension has been aggravated (worsened) by her service-connected PTSD with MDD;

(e) the Veteran's tinnitus was caused by service-connected PTSD with MDD;

(f) the Veteran's tinnitus has been aggravated (worsened) by her service-connected PTSD with MDD;

(g) the Veteran's migraines have been aggravated (worsened) by her service-connected PTSD with MDD;

(h) the Veteran's GERD has been aggravated (worsened) by her service-connected PTSD with MDD; or

(i) the Veteran's obstructive sleep apnea has been aggravated (worsened) by her service-connected PTSD with MDD.

(j) the Veteran's service-connected disabilities, including PTSD with MDD and supraventricular arrythmia, caused her to become obese?

(k) obesity was made worse by the Veteran's service-connected disabilities, including PTSD with MDD and supraventricular arrythmia?

(l) obesity (or worsening of obesity) was a substantial factor in causing the Veteran's hypertension?

(m) hypertension would not have occurred but for the Veteran's obesity (or worsening of obesity)?

(n) obesity (or worsening of obesity) was a substantial factor in causing the Veteran's GERD?

(o) GERD would not have occurred but for the Veteran's obesity (or worsening of obesity)?

(p) obesity (or worsening of obesity) was a substantial factor in causing the Veteran's obstructive sleep

(q) obstructive sleep apnea would not have occurred but for the Veteran's obesity (or worsening of obesity)?

(r) obesity (or worsening of obesity) was a substantial factor in causing the Veteran's PCOS?

(s) PCOS would not have occurred but for the Veteran's obesity (or worsening of obesity)?

A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion.

S. BUSH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Asante, Ruby

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.

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