Citation Nr: 0810088	
Decision Date: 03/27/08    Archive Date: 04/09/08

DOCKET NO.  04-41 955	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, 
Ohio


THE ISSUES

1.  Entitlement to service connection for shell fragment 
wounds of the back.  

2.  Entitlement to service connection for jungle rot.  

3.  Entitlement to service connection for emersion foot.  

4.  Entitlement to service connection for loss of teeth.  

5.  Entitlement to service connection for residuals of 
vampire bat bite.  

6.  Entitlement to service connection for residuals of a 
rabies shot.  

7.  Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for a 
concussion.  

8.  Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for 
residuals of malaria.

9.  Entitlement to service connection for tinnitus.  

10.  Entitlement to a compensable evaluation for bilateral 
hearing loss.  

11.  Entitlement to an evaluation in excess of 30 percent 
disabling for post traumatic stress disorder (PTSD).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and C.A.


ATTORNEY FOR THE BOARD

J.G. Reinhart, Associate Counsel


INTRODUCTION

The veteran served on active duty from October 1967 to August 
1970.  

This matter comes to the Board of Veterans' Appeals  (Board) 
on appeal from May 2003, April 2005, and August 2006 rating 
decisions of the Department of Veterans Affairs (VA) Regional 
Office (RO) in Cleveland, Ohio.  In the August 2003 rating 
decision, the RO granted service connection for PTSD and 
assigned an initial evaluation.  In the August 2006 rating 
decision, the RO denied service connection for tinnitus.  All 
other issues listed on the title page arise from the April 
2005 rating decision.  

In January 2006, the veteran and C.A. testified at a personal 
hearing before a Decision Review Officer (DRO).  In February 
2007, the veteran and C.A. testified at a personal hearing 
before the undersigned Veterans Law Judge.  Transcripts of 
these hearings are of record.  

In his April 2007 substantive appeal of the RO's denial of 
his claim of entitlement to service connection for tinnitus, 
the veteran requested a hearing before a member of the Board.  
To the extent that failing to afford him the requested 
hearing prior to the Board's adjudication of that appeal is 
error, the Board finds this to be harmless error.  The Board 
is granting the benefit sought and the RO will assign a 
disability rating and effective date in the first instance.  
If the veteran disagrees with those assignments, he will have 
an opportunity to appeal, including the opportunity for a 
hearing.  Because a decision granting service connection for 
tinnitus will not prejudice the veteran, the Board is not 
precluded from adjudicating his appeal as to this matter at 
this time.  See Bernard v. Brown, 4 Vet. App. 384, 393 
(1993).  


FINDINGS OF FACT

1.  As of December 2005, the veteran had perfected appeals to 
the Board of the RO's denial of claims of entitlement to 
service connection for shell fragment wounds of the back, 
jungle rot, emersion foot, loss of teeth, residuals of 
vampire bat bite, residuals of rabies shot, the RO's denial 
of claims to reopen previously denied claims of entitlement 
to service connection for a concussion and for residuals of 
malaria, and the RO's denial of higher ratings for bilateral 
hearing loss and PTSD.

2.  In a January 2006 written statement, prior to the 
promulgation of a decision in the appeal, the veteran stated 
that he wanted to withdraw all issues on appeal except the 
issues of entitlement to increased evaluations for hearing 
loss and PTSD.  

3.  The veteran currently suffers from tinnitus that had its 
onset during his active service.  

4.  The veteran's hearing loss is manifested by an average 
pure tone threshold of 33.33 decibels for each ear with 
speech discrimination of 84 percent in the right ear and of 
86 percent in the left ear.  

5.  The veteran's PTSD results in no more than occupational 
and social impairment with occasional decrease in work 
efficiency and intermittent periods of inability to perform 
occupational tasks.  


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a substantive appeal 
pertaining to entitlement to service connection for shell 
fragment wounds of the back, jungle rot, emersion foot,  loss 
of teeth, residuals of vampire bat bite, residuals of rabies 
shot, a concussion, and residuals of malaria have been met.  
38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 
(2007).  

2.  The criteria for entitlement to service connection for 
tinnitus have been met.  38 U.S.C.A. §§ 1110, 5107 (West 
2002); 38 C.F.R. §§ 3.102, 3.303 (2007).  

3.  The criteria for entitlement to a compensable evaluation 
for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 
1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 
4.86 Diagnostic Code 6100 (2007)

4.  The criteria for entitlement to an evaluation in excess 
of 30 percent for PTSD have not been met.  38 U.S.C.A. §§ 
1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 
4.10, 4.126, 4.130, Diagnostic Code 9411 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal 
which fails to allege specific error of fact or law in the 
determination being appealed.  A Substantive Appeal may be 
withdrawn in writing at any time before the Board promulgates 
a decision.  38 C.F.R. § 20.202 (2007).  Withdrawal may be 
made by the appellant or by his or her authorized 
representative.  38 C.F.R. § 20.204 (2007).  Except for 
appeals withdrawn on the record at a hearing, appeal 
withdrawals must be in writing.  Id.

In April 2005, the RO denied the appellant's claims for 
entitlement to service connection for shell fragment wounds 
of the back, jungle rot, emersion foot, loss of teeth, 
residuals of vampire bat bite, residuals of rabies shot; and 
to reopen previously denied claims of entitlement to service 
connection for a concussion and for residuals of malaria.  
The appellant appealed these decisions.  

In a writing dated in January 2006, the veteran stated that 
he wanted to withdraw all issues on appeal except the issues 
of entitlement to increased evaluations for hearing loss and 
PTSD.  Accordingly, the Board has no jurisdiction to decide 
the veteran's claims for service connection for shell 
fragment wounds of the back, jungle rot, emersion foot, loss 
of teeth, residuals of vampire bat bite, and residuals of 
rabies shot, or to reopen his previously denied claims for 
entitlement to service connection for a concussion and 
residuals of malaria.  Hence, the appeals regarding these 
matters must be dismissed.  

Service connection

One of the matters the Board must address is which issue or 
issues are properly before it at this time.  Under 
38 U.S.C.A. § 7105(a), an appeal to the Board must be 
initiated by a notice of disagreement and completed by a 
substantive appeal after a statement of the case (SOC) is 
furnished to the veteran.  In essence, the following sequence 
is required:  There must be a decision by the RO; the veteran 
must timely express disagreement with the decision; VA must 
respond by issuing a statement of the case that explains the 
basis for the decision to the veteran; and finally the 
veteran, after receiving adequate notice of the basis of the 
decision, must complete the process by stating his or her 
argument in a timely-filed substantive appeal.  38 C.F.R. 
§§ 20.200, 20.201, 20.202, 20.203.  See also 38 U.S.C.A. 
§ 7104; 38 C.F.R. §§ 19.4, 20.101 (the Board has jurisdiction 
to resolve questions as to its own jurisdiction).  See also 
Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (it is 
a well-established judicial doctrine that any statutory 
tribunal must ensure that it has jurisdiction over each case 
before adjudicating the merits, and that a potential 
jurisdictional defect may be raised by the court or tribunal, 
sua sponte or by any party at any stage in the proceedings, 
and, once apparent, must be adjudicated).   

In August 2006, the RO denied the veteran's claim for 
entitlement to service connection for tinnitus.  He timely 
filed a notice of disagreement with that decision in February 
2007.  In response, the RO issued a statement of the case in 
March 2007 and the veteran timely perfected his appeal to the 
Board in April 2004 by filing a properly executed VA Form 9.  
As the procedure outlined above has been completed, the Board 
has jurisdiction to decide his appeal as to this issue.  

The January 2006 withdrawal of many claims does not impact 
this finding as the veteran withdrew those claims at the same 
time he raised this new claim. 

Service connection may be granted for a disability resulting 
from a disease or injury incurred in or aggravated by 
service.  See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 
3.303(a) (2007).  In general, service connection requires (1) 
medical evidence of a current disability; (2) medical, or in 
certain circumstances, lay evidence of in- service incurrence 
or aggravation of a disease or injury; and (3) medical 
evidence of a nexus between the claimed in- service disease 
or injury and the current disability.  See Hickson v. West, 
12 Vet. App. 247, 253 (1999).  

In cases where chronicity of a disorder is not established 
during service or within a presumptive period, if applicable, 
service connection may still be granted upon a showing of 
continuity of symptomatology.  38 C.F.R. § 3.303(b).  

VA must consider both lay and medical evidence in deciding a 
claim for entitlement to service connection.  See Buchanan v. 
Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).  Lay 
evidence may be sufficient to grant service connection.  Id.  
When, after consideration of all of the evidence and material 
of record in an appropriate case before VA, there is an 
approximate balance of positive and negative evidence 
regarding the merits of an issue material to the 
determination of the matter, the Secretary shall give the 
benefit of the doubt to the claimant.  38 U.S.C.A. § 5107;  
Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  

In a January 2006 statement, the veteran claimed service 
connection for tinnitus, contending that his exposure to a 
land mine explosion caused this disability.  Service medical 
records contain a January 1969 note that the veteran 
sustained a blast concussion of the right ear in the vicinity 
of Khe Sanh.  Notes from the following month state that the 
veteran had a decrease in hearing acuity and suffered from 
tinnitus.  These notes also report that his hearing had 
improved and that he no longer had tinnitus.  

The Board finds that the first element of a service 
connection claim has been met, that is, an injury or event 
during service involving the claimed disability.  

In February 2006, the veteran underwent a VA audiology 
examination.  He reported ringing in his ears.  The examiner 
thereafter referred to this condition as tinnitus.  Hence, 
all lay and medical evidence of record indicates that the 
veteran currently has tinnitus; satisfying the second element 
of a service connection claim.

The February 2006 examination report contains the examiner's 
statement that the veteran reported that his tinnitus began 
in 1995.  In explaining his conclusion that the veteran's 
tinnitus was less likely than not the result of exposure to 
noise in military service, the examiner commented that the 
veteran was released from active service in 1970 with onset 
of tinnitus in 1995 and referred to the veteran's tinnitus as 
"late-appearing".  Thus, the examiner's opinion was based 
on a factual determination that the veteran's tinnitus began 
many years after service.  

Also of record are clinical notes from a February 2007 VA 
audiology consult.  These include the veteran's report that 
he had experienced tinnitus with onset in January 1969 and 
that he experienced symptoms day to day.  The veteran is 
competent to report on symptoms that he has experienced.  See 
Layno v. v. Brown, 6 Vet. App. 465, 470 (1994).  This is 
evidence favorable to his claim as it tends to show that his 
current tinnitus has persisted since service.  

Based on the above, this claim comes down to determining 
whether to assign more weight to the report by the February 
2006 examiner, coupled with the report in the service medical 
records that his tinnitus was gone the month following his 
exposure to the explosion, or, the veteran's written report 
in the February 2007 questionnaire that his tinnitus began in 
1969 and his testimony that he had ringing in the ears since 
service.  

Between the two, only the veteran's report in the February 
2007 questionnaire is unfiltered by any other individual, and 
is thus at least as probative as the other reports.  
Furthermore, the veteran's orally presented estimation of 
long time periods is not very accurate.  During the January 
2006 DRO hearing, he testified that he suffered from ringing 
in the ears for 20 years and that he had suffered from 
tinnitus since the mine explosion during service.  DRO 
hearing at page 23.  The veteran was discharged from service 
36 years prior to that hearing.  Clear from this testimony, 
in rendering his oral statements as to history the veteran 
does not accurately assign precise numbers.  Thus, any report 
made to the examiner as to date of onset of tinnitus is not 
reliable.  

Notwithstanding the above, the Board finds that the evidence 
as to this third element is in equipoise.  Hence, the Board 
must find in favor of the veteran.  See 38 U.S.C.A. § 
5107(b); 38 C.F.R.  § 3.102.  For these reasons, service 
connection for tinnitus is warranted, and his claim must be 
granted.  

Increased ratings

Disability ratings are determined by applying the criteria 
set forth in the VA's Schedule for Rating Disabilities, which 
is based on the average impairment of earning capacity.  
Individual disabilities are assigned separate diagnostic 
codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  The basis of 
disability evaluations is the ability of the body as a whole, 
or of the psyche, or of a system or organ of the body to 
function under the ordinary conditions of daily life 
including employment.  38 C.F.R. § 4.10.

In determining the severity of a disability, the Board is 
required to consider the potential application of various 
other provisions of the regulations governing VA benefits, 
whether or not they were raised by the veteran, as well as 
the entire history of the veteran's disability.  38 C.F.R. §§ 
4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 
(1991).

In deciding the veteran's increased evaluation claims, the 
Board has considered the determinations in Fenderson v. West, 
12 Vet. App. 119 (1999) and Hart v. Mansfield, No. 05-2424 
(U.S. Vet. App. Nov. 19, 2007), and whether the veteran is 
entitled to an increased evaluation for separate periods 
based on the facts found during the appeal period.  In 
Fenderson, the U.S. Court of Veterans Appeal (now the U.S 
Court of Appeals for Veterans Claims and herinafter referred 
to as the Court) held that evidence to be considered in the 
appeal of an initial assignment of a rating disability was 
not limited to that reflecting the then current severity of 
the disorder.  In that decision, the Court also discussed the 
concept of the "staging" of ratings, finding that, in cases 
where an initially assigned disability evaluation has been 
disagreed with, it was possible for a veteran to be awarded 
separate percentage evaluations for separate periods based on 
the facts found during the appeal period (as in this case).  
Id. at 126.  Hart appears to extend Fenderson to all 
increased evaluation claims. 

Hearing loss

Service connection for bilateral hearing loss was established 
in an August 2003 rating decision and a noncompensable (0 
percent) evaluation was assigned.  That evaluation remained 
in place until the veteran filed his current claim for an 
increased rating, in November 2004.  

Evaluations of defective hearing are based on organic 
impairment of hearing acuity as measured by the results of 
controlled speech discrimination testing together with the 
average hearing threshold level as measured by pure tone 
audiometric tests in the frequencies 1,000, 2,000, 3,000 and 
4,000 Hertz.  38 C.F.R. § 4.85, Diagnostic Code 6100.  To 
evaluate the degree of disability from defective hearing, the 
rating schedule requires assignment of a Roman numeral 
designation, ranging from I to XI.  Other than exceptional 
cases, VA arrives at the proper designation by mechanical 
application of Table VI, which determines the designation 
based on results of standard test parameters.  Id.  Table VII 
is then applied to arrive at a rating based upon the 
respective Roman numeral designations for each ear.  Id.

For exceptional hearing impairment, 38 C.F.R. § 4.86 (2007), 
states that when the pure tone threshold at each of the four 
specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 
55 decibels or more, or when the pure tone threshold is 30 
decibels or less at 1000 Hertz and 70 decibels or more at 
2000 Hertz, the rating specialist will determine the Roman 
numeral designation for hearing impairment from either Table 
VI or Table VIa, whichever results in the higher numeral.  
Each ear is to be evaluated separately.  Id.

Of record are results from audiological testing conducted in 
February 2006 and in February 2007.  The February 2006 
testing was conducted pursuant to a VA examination for 
compensation purposes.  That examination yielded test results 
of pure tone thresholds in the right ear at 500, 1000, 2000, 
3000, and 4000 Hertz of 15, 15, 15, 40, and 6 decibels, 
respectively, for an average over the four frequencies of 
interest of 33.33 decibels.  Pure tone thresholds measured in 
the left ear at 500, 1000, 2000, 3000, and 4000 Hertz were 
15, 15, 20, 30, and 65 decibels, respectively, with an 
average over the four frequencies of interest of 33.33 
decibels.  Speech audiometry revealed speech recognition 
ability of 84 percent in the right ear and of 86 percent in 
the left ear.  

Application of 38 C.F.R. § 4.85 Table VIA to the February 
2006 measurements results in assignment of Roman Numeral II 
to each ear, for the purpose of determining a disability 
rating.  A noncompensable, or 0 percent, rating is derived 
from Table VII of 38 C.F.R. § 4.85 by intersecting row II 
with column II.

Also of record are results from audiological testing in 
February 2007, pursuant to an audiology consult.  Word 
recognition was 96 percent for the right ear and 92 percent 
for the left ear.  Pure tone threshold measurements are 
included, but only in graphical, rather than numerical, 
format.  

In Kelly v. Brown, 7 Vet. App. 471 (1995), the Court remarked 
as to the limitations of the Court when it comes to fact 
finding.  In that case, the record included a graph comparing 
that appellant's current hearing acuity to his hearing acuity 
during service.  Id. at 474.  The Court stated: 

"[t]he Court is unable to interpret the 
results of this graph and, therefore, 
cannot determine whether the Board 
accurately applied the standards of the 
regulation.  Interpretation of Dr. Lang's 
report requires a factual finding.  
[citation omitted]  Thus, the Court is 
unable to review the record without 
engaging in fact-finding, which is not 
the role of this Court in the first 
instance."  

The Court remanded that matter to the Board because the Board 
had failed to provide adequate reasons and basis for its 
decision.  Id.  

This is not a holding that the Board is precluded from 
interpreting graphical test results, only a statement of the 
Court's limitations as to fact finding.  Regardless, the 
Board need not interpret the numbers represented by the graph 
of the February 2007 audiometric testing.  Rather, the Board 
merely makes a determination here that the graph does not 
represent measurements that are even marginally near those 
necessary to satisfy the criteria for a compensable 
evaluation, therefore providing evidence against this claim.  

The graph clearly shows that the neither ear approached the 
following points: 40 decibels at 500 Hertz, 40 decibels at 
1000 Hertz, 40 decibels at 2000 Hertz, 60 decibels at 3000 
Hertz, and 80 decibels at 4000 Hertz.  Even considering the 
outcome if both ears did meet these values, the largest 
average hearing loss over the four frequencies of interest 
would be 60 decibels in both ears.  Given that the word 
recognition scores from that test fell within the 92 to 100 
percent discrimination bracket, these hypothetical results 
would require assignment of Roman Numeral II to each ear.  
Intersection of column II with row II, of Table VI, would 
result in a noncompensable evaluation.  Nor would the "worse 
than worst possible case" just described meet the criteria 
for exceptional hearing loss under 38 C.F.R. § 4.86.  

In short, the results from the February 2002 audiology 
testing do not provide, even with speculation overwhelmingly 
biased in favor of the veteran, for assigning a compensable 
evaluation for the veteran's bilateral hearing loss.  

The Board does not find evidence that the veteran's hearing 
loss disability should be increased for any period based on 
the facts found during the whole appeal period.  The evidence 
of record from the day the veteran filed the claim to the 
present supports the conclusion that the veteran is not 
entitled to additional increased compensation during any time 
within the appeal period.  As such, the claim for a higher 
evaluation for bilateral hearing loss must be denied.  The 
evidence in this case is not so evenly balanced so as to 
allow application of the benefit-of- the-doubt rule.  Gilbert 
v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 
38 C.F.R. § 3.102 (2007).  

PTSD

Service connection was established for PTSD in the May 2003 
rating decision from which the veteran appeals.  At that 
time, the RO assigned a 10 percent evaluation, effective in 
January 2003, the date of the veteran's claim for entitlement 
to service connection for PTSD.  In March 2005, the RO 
changed this evaluation to 30 percent disabling, also 
effective in January 2003.  

Criteria for evaluating PTSD are found at 38 C.F.R. Part 4, 
Diagnostic Code 9411 (2007).  A 30 percent evaluation is 
assigned where there is occupational and social impairment 
with occasional decrease in work efficiency and intermittent 
periods of inability to perform occupational tasks (although 
generally functioning satisfactorily, with routine behavior, 
self-care, and conversation normal), due to such symptoms as: 
depressed mood, anxiety, suspiciousness, panic attacks 
(weekly or less often), chronic sleep impairment, mild memory 
loss (such as forgetting names, directions, recent events).  
38 C.F.R. Part 4, Diagnostic Code 9411 (2007).  

A 50 percent evaluation is warranted where there is 
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; 
impaired judgment; impaired abstract thinking; disturbance of 
motivation and mood; and difficulty in establishing and 
maintaining effective work and social relationships.  Id.  

A 70 percent evaluation is warranted where 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; intermittently illogical obscure, or irrelevant 
speech; near-continuous panic or depression affecting the 
ability to function independently, appropriately and 
effectively; impaired impulse control (such as unprovoked  
irritability with periods of violence); spatial 
disorientation; neglect of personal appearance and hygiene; 
difficulty in adapting to stressful circumstances (including 
work or a worklike setting); inability to establish and 
maintain effective relationships.  Id.  

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

It is further noted that the nomenclature employed in the  
portion of VA's Schedule for Rating Disabilities ("the 
Schedule") that addresses service-connected psychiatric 
disabilities is based upon the Diagnostic and Statistical 
Manual of Mental Disorders, Fourth Edition, of the American 
Psychiatric Association (also known as "the DSM-IV").  38 
C.F.R. § 4.130 (2007).  The DSM-IV contains a Global 
Assessment of Functioning (GAF) scale, with scores ranging 
between zero and 100 percent, representing the psychological, 
social, and occupational functioning of an individual on a 
hypothetical continuum of mental health - illness.  Higher 
scores correspond to better functioning of the individual.  

GAF scores ranging between 61 and 70 are assigned in cases 
where symptoms, if present, are transient and expectable 
reactions to psychosocial stressors (e.g., difficulty 
concentrating after family argument); no more than slight 
impairment in social, occupational, or school functioning 
(e.g., temporarily falling behind in schoolwork).  American 
Psychiatric Association's Diagnostic and Statistical Manual 
of Mental Disorders (4th. ed., 1994).  

GAF scores ranging between 61 and 70 are assigned when there 
are some mild symptoms (e.g., depressed mood and mild 
insomnia), or some difficulty in social, occupational, or 
school functioning (e.g., occasional truancy, or theft within 
the household), but when the individual is functioning pretty 
well and has some meaningful interpersonal relationships.  
Id.  

GAF scores ranging between 51 and 60 are assigned when there 
are moderate symptoms (like flat affect and circumstantial 
speech, and occasional panic attacks), or moderate difficulty 
in social, occupational, or school functioning (e.g., few 
friends, conflicts with peers or co-workers).  Id.  

GAF scores ranging between 41 and 50 are assigned when there 
are serious symptoms (e.g., suicidal ideation, severe 
obsessional rituals, frequent shoplifting), or any serious 
impairment in social, occupational, or school functioning 
(e.g., no friends, unable to keep a job).  Id.  

Symptoms listed in VA's general rating formula for mental 
disorders are not intended to constitute an exhaustive list, 
but rather are to serve as examples of the type and degree of 
the symptoms, or their effects, that would justify a 
particular rating.  Mauerhan v.  Principi, 16 Vet. App. 436 
(2002).

According to the applicable rating criteria, when evaluating 
a mental disorder, the frequency, severity, and duration of 
psychiatric symptoms, the length of remissions, and the 
veteran's capacity for adjustment during periods of remission 
must be considered.  38 C.F.R. § 4.126(a) (2007).  In 
addition, the evaluation must be based on all the evidence of 
record that bears on occupational and social impairment 
rather than solely on the examiner's assessment of the level 
of disability at the moment of the examination.  Id.  
Further, when evaluating the level of disability from a 
mental disorder, the extent of social impairment is 
considered, but the rating cannot be assigned solely the 
basis of social impairment.  38 C.F.R. § 4.126(b) (2007).

In April 2003, June 2004, and February 2005, the veteran 
underwent VA examinations with regard to his PTSD.  VA 
outpatient clinic notes provide additional evidence relevant 
to determining the proper evaluation for his PTSD.  

All examiners reported the veteran to be neatly dressed and 
cooperative and without delusions, hallucinations, abnormal 
speech, abnormal thought processes, or mood impairment.  His 
principle symptoms include some insomnia, mostly waking at 
night if he hears a sound and having to investigate its 
source, intrusive thoughts, nightmares, irritability, 
heightened startle response, and problems with anger.  He 
reported a history of violent behavior.  He has, however, 
consistently reported that he has a number of friends.  

During the last two examinations, the veteran reported 
working full time as an electrician.  During the February 
2005 examination, he expressed his fear of an inability to 
keep a job and reported that he had had three jobs since the 
prior examination.  However, he explained that that the first 
job ended due to expiration of the contract, a cause clearly 
not attributable to the veteran's PTSD.  As to the other two 
positions, his explanations indicate a number of factors, 
including safety issues not caused by his behavior.  

The April 2003 examiner described the veteran's PTSD as 
"mild", clearly providing evidence against this claim.  
Both subsequent examination reports state that his PTSD had 
not worsened since the first examination, providing more 
evidence against this claim.  GAF scores of 72 were assigned 
following the April 2003 and June 2004 examinations and a GAF 
score of 65 was assigned following the February 2005 
examination.  

VA outpatient treatment records do not present a 
significantly different picture from depicted by the 
examination reports.  An August 2003 note assigned a GAF 
score of 55.  May 2006 VA outpatient indicate that the 
veteran's affect was irritable and dysphoric, consistent with 
content.  January 2007 notes contain a report that the 
veteran was concerned about recent medical problems as well 
as legal problems resulting from a driving while intoxicated 
charge.  

February 2007 VA outpatient notes contain a report that the 
veteran exhibited hesitant speech but he had coherent thought 
processes.  At that time he endorsed feelings of 
hopelessness, had depressed mood but without suicidal plan or 
intent, his affect was anxious and dysphoric.  The attending 
physician stated that the veteran wanted to return to work 
but there was some doubt as to his capabilities given the 
severity of his anxiety and depressive symptoms.  That 
physician described his condition as "continued serious PTSD 
symptoms."  

The VA examinations and outpatient treatment records are 
found to provide, overall, evidence against assigning a 
rating higher than 30 percent for the veteran's PTSD.  The 
extent of his social impairment amounts to irritability, with 
difficulty controlling his temper.  The Board is aware that 
his recent driving while intoxicated charge can reasonably be 
construed as social impairment.  However, the veteran has 
reported a continual relationship with a significant other 
and that he has a number of friends with whom he engages in 
social interaction.  The evidence shows that he does not have 
difficulty in maintaining social relationships, providing 
evidence against this claim. 

As to any occupational impairment, the evidence shows that 
the veteran actively works as an electrician including as a 
supervisor.  Although he reported three jobs in a relatively 
short period of time, one of these ended for reasons 
completely unrelated to his PTSD; the termination of a 
contract.  During the January 2006 DRO hearing, the veteran 
theorized that his layoffs from jobs "would probably be the 
anger which is related to the PTSD."  DRO hearing transcript 
at 12 - 13.  He also testified that he does not get along 
with coworkers.  Id. at 5 - 6.  The veteran's theory as to a 
possible reason for his layoffs is pure speculation.  He has 
been able to maintain employment and there is no concrete 
evidence that any job changes were indeed due to his PTSD.  
In fact, the Board finds that the statements of the veteran 
regarding this issue provide evidence against this claim.  
Although he may have difficulties with his coworkers, the 
preponderance of the evidence shows that he does not have 
difficulty in maintaining and establishing effective work 
relationships.  

Overall, the Board finds no evidence of record shows the 
veteran to have reduced reliability and productivity in his 
social or occupational functioning or that any of the 
representative symptoms listed under the criteria for ratings 
higher than 30 percent present.  His speech, at worst, was 
described as hesitant, but has never been describes as 
circumstantial, circumlocutory or stereotyped.  He has never 
been found to have difficulty in understanding complex 
commands, to have any impairment of memory, or to suffer from 
panic attacks.  There is no evidence of disturbance in 
motivation, impaired thinking or impaired judgment.  While he 
has been found to be dysphoric, this disturbance in mood is 
not shown to have caused impairment either socially or 
occupationally.  

Significantly, the GAF scores assigned over the course of 
this appeal indicate mild symptoms, with the exception of the 
most recent score of 55, indicative of moderate symptoms.  
However, even given that score and taking all the other 
evidence at the time that score was assigned, a rating of 30 
percent is the most appropriate.  

Also considered by the Board is the description of his PTSD 
symptoms as "severe" by the attending physician in February 
2007.  Giving this statement due probative value, the Board 
finds that the rest of the record, which indicates mild 
symptoms of PTSD, and nearly no social or occupational 
impairment, outweighs the statement by the attending 
physician.  In short, the veteran's PTSD does not warrant a 
schedular rating higher than that already assigned.  

To accord justice in an exceptional case where the scheduler 
standards are found to be inadequate, the field station is 
authorized to refer the case to the Chief Benefits Director 
or the Director, Compensation and Pension Service for 
assignment of an extraschedular evaluation commensurate with 
the average earning capacity impairment.  38 C.F.R. § 
3.321(b)(1) (2007).  The criterion for such an award is a 
finding that the case presents an exceptional or unusual 
disability picture with related factors as marked 
interference with employment or frequent periods of 
hospitalization as to render impractical application of 
regular schedular standards.  The Court of Appeals for 
Veterans Claims (Court) has held that the Board is precluded 
by regulation from assigning an extraschedular rating under 
38 C.F.R.  § 3.321(b)(1) in the first instance; however, the 
Board is not precluded from raising this question, and in 
fact is obligated to liberally read all documents and oral 
testimony of record and identify all potential theories of 
entitlement to a benefit under the law and regulations.  
Floyd v. Brown, 9 Vet. App. 88 (1996).  The Court further 
held that the Board must address referral under 38 C.F.R. 
§3.321(b)(1) only where circumstances are presented which the 
Director of VA's Compensation and Pension Service might 
consider exceptional or unusual.  Shipwash v. Brown, 8 Vet. 
App. 218, 227 (1995).

The RO considered an extraschedular evaluation under the 
provisions of 38 C.F.R. § 3.321(b)(1) and determined referral 
for extraschedular consideration was not warranted in this 
case.  The Board agrees.  The veteran has not required any 
periods of hospitalization for his PTSD.  Although he has 
expressed concern over his employment and indicated some 
changes in jobs, he has nearly always been employed over the 
course of this appeal.  Furthermore, no objective evidence of 
record, including the most recent VA treatment records, shows 
that his PTSD has caused marked interference with employment.  

To the extent that his PTSD interferes at all with his 
employment, such interference is minimal and already 
contemplated by the schedular rating assigned.  See 38 C.F.R. 
§ 4.1.  In the absence of evidence presenting exceptional 
circumstances, the claim is not referred for consideration of 
an extraschedular rating; the veteran's disability is 
appropriately rated under the schedular criteria.

The Board does not find evidence that rating for the 
veteran's PTSD should be increased for any other separate 
period, or referred for extraschedular consideration, based 
on the facts found during the whole appeal period.  The 
evidence of record from the day the veteran filed the claim 
to the present supports the conclusion that the veteran is 
not entitled to additional increased compensation during any 
time within the appeal period. 

Based on the above, the preponderance of the evidence is 
against assigning a rating higher than 30 percent for the 
veteran's PTSD.  Therefore, the claim must be denied.  The 
evidence in this case is not so evenly balanced so as to 
allow application of the benefit-of- the-doubt rule.  Gilbert 
v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 
38 C.F.R. § 3.102 (2007).  

Duties to notify and assist

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), the United States Department of Veterans Affairs (VA) 
has a duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper notice from VA must inform the claimant 
of any information and evidence not of record (1) that is 
necessary to substantiate the claim; (2) that VA will seek to 
provide; (3) that the claimant is expected to provide; and 
(4) must ask the claimant to provide any evidence in her or 
his possession that pertains to the claim in accordance with 
38 C.F.R. § 3.159(b)(1).  This notice must be provided prior 
to an initial unfavorable decision on a claim by the agency 
of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. 
App. 112 (2004).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court 
held that, upon receipt of an application for a service-
connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. 
§ 3.159(b) require VA to review the information and the 
evidence presented with the claim and to provide the claimant 
with notice of what information and evidence not previously 
provided, if any, will assist in substantiating, or is 
necessary to substantiate, each of the five elements of the 
claim, including notice of what is required to establish 
service connection and that a disability rating and an 
effective date for the award of benefits will be assigned if 
service connection is awarded.  

For an increased-compensation claim, section § 5103(a) 
requires, at a minimum, that the Secretary notify the 
claimant that, to substantiate a claim, the claimant must 
provide, or ask the Secretary to obtain, medical or lay 
evidence demonstrating a worsening or increase in severity of 
the disability and the effect that worsening has on the 
claimant's employment and daily life.  Vazquez-Flores v. 
Peake, 22 Vet. App. 37 (2008).  

Further, if the Diagnostic Code under which the claimant is 
rated contains criteria necessary for entitlement to a higher 
disability rating that would not be satisfied by the claimant 
demonstrating a noticeable worsening or increase in severity 
of the disability and the effect that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the Secretary must provide at 
least general notice of that requirement to the claimant.  
Vazquez-Flores, at 43-44. 

Additionally, the claimant must be notified that, should an 
increase in disability be found, a disability rating will be 
determined by applying relevant Diagnostic Codes, which 
typically provide for a range in severity of a particular 
disability from noncompensable to as much as 100 percent 
(depending on the disability involved), based on the nature 
of the symptoms of the condition for which disability 
compensation is being sought, their severity and duration, 
and their impact upon employment and daily life.  As with 
proper notice for an initial disability rating and consistent 
with the statutory and regulatory history, the notice must 
also provide examples of the types of medical and lay 
evidence that the claimant may submit (or ask the Secretary 
to obtain) that are relevant to establishing entitlement to 
increased compensation-e.g., competent lay statements 
describing symptoms, medical and hospitalization records, 
medical statements, employer statements, job application 
rejections, and any other evidence showing an increase in the 
disability or exceptional circumstances relating to the 
disability.  Id.  

As to the issues withdrawn by the veteran, since the Board 
has no jurisdiction to decide those issues, the VCAA is 
inapplicable.  

With regard to the veteran's claim for entitlement to service 
connection for tinnitus, the Board is granting in full the 
benefit sought.  Accordingly, assuming, without deciding, 
that any error was committed with respect to either the duty 
to notify or the duty to assist, such error was harmless and 
will not be further discussed.  

As to the remaining issues decided above, those involving the 
veteran's PTSD and hearing loss, the VCAA duty to notify was 
satisfied by way of a letters sent to the veteran in February 
2003, February 2004, and March 2006, that fully addressed all 
four notice elements.  

Here, the duty to notify was not completely satisfied prior 
to the initial unfavorable decision on these claims by the 
AOJ.  Under such circumstances, VA's duty to notify may not 
be "satisfied by various post-decisional communications from 
which a claimant might have been able to infer what evidence 
the VA found lacking in the claimant's presentation."  
Rather, such notice errors may instead be cured by issuance 
of a fully compliant notice, followed by readjudication of 
the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. 
Cir. 2006) (where notice was not provided prior to the AOJ's 
initial adjudication, this timing problem can be cured by the 
Board remanding for the issuance of a VCAA notice followed by 
readjudication of the claim by the AOJ) see also Prickett v. 
Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a 
fully compliant VCAA notification followed by readjudication 
of the claim, such as a statement of the case (SOC) or 
supplemental statement of the case (SSOC), is sufficient to 
cure a timing defect).  

In this case, the VCAA duty to notify was satisfied 
subsequent to the initial AOJ decision by way of the letters 
described above, that fully addressed all four notice 
elements.  The February 2003 letter informed the veteran of 
what evidence was required to substantiate his claim for 
entitlement to service connection for PTSD and of the 
veteran's and VA's respective duties for obtaining evidence.  
The veteran was also asked to submit evidence and/or 
information, which would include that in his possession, to 
the AOJ.  That letter was sent prior to the initial 
adjudication of his claim by the AOJ.  

The February 2004 letter provided the veteran with VCAA 
notice as to his claim for an increased rating for hearing 
loss and as to the requirements for establishing a higher 
initial rating for PTSD.  He was given examples of the types 
of evidence needed to substantiate his claims, including 
medical evidence and that he could submit statements from 
other individuals as to the manner in which disabilities had 
worsened in severity.  Additionally, he was told that the 
evidence should completely describe his symptoms, their 
frequency and severity, and other involvement, extension and 
additional disablement caused by his disability.  This notice 
was sufficiently broad as to reasonably encompass the effect 
of his PTSD and hearing loss on his employment and daily 
life.  Finally, he was again apprised of his and VA's 
respective duties for obtaining evidence and asked to submit 
evidence and/or information in her or his possession, to the 
AOJ.  

Although the notice letter was not sent before the initial 
AOJ decision in this matter, the Board finds that this error 
was not prejudicial to the veteran because the actions taken 
by VA after providing the notice have essentially cured the 
error in the timing of notice.  Not only has the veteran been 
afforded a meaningful opportunity to participate effectively 
in the processing of her or his claim and given ample time to 
respond, but the AOJ also readjudicated his claims since that 
notice.  Notably, the RO readjudicated his claim regarding 
PTSD by way of an SOC issued in October 2004, and SSOC's 
issued in March 2005, October 2005, and April 2006.  
Similarly, the RO readjudicated his claim regarding hearing 
loss by way of an SOC issued in October 2005 and an SSOC, 
issued in March 2006.  

In March 2006, the veteran was sent a letter informing him as 
to how VA assigns effective dates and disability ratings.  
However, no subsequent adjudication followed that letter so 
the Board does not find that the notice defect as to 
effective dates was "cured."  However, the Board does find 
that the error as to this notice is harmless error.  

In Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court 
stated that in determining whether the essential fairness of 
the adjudication had been affected by defects in notice, 
consideration should be given to the notice that was provided 
and the extent to which the extensive administrative process 
had provided an opportunity to develop the case.  Here, the 
veteran's claims, adjudicated in this decision, have been 
subject to a lengthy and extensive administrative process, 
including a hearing before the undersigned, following 
issuance of the March 2006 letter.  The Board thus finds that 
the veteran has had a meaningful opportunity to participate 
in the development of this case and has not been prejudiced 
by this defect in notice.  

Is sum, the Board finds that the notice provided in the 
February 2003, February 2004, and March 2006 letters, coupled 
with the extensive administrative process, has sufficiently 
satisfied VA's duty to notify and, to the extent that any 
error remains, at this point the error is harmless.  For 
these reasons, it is not prejudicial to the appellant for the 
Board to proceed to finally decide this appeal as the timing 
error did not affect the essential fairness of the 
adjudication.  

VA has a duty to assist the veteran in the development of the 
claim.  This duty includes assisting the veteran in the 
procurement of service medical records and pertinent 
treatment records and providing an examination when 
necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the veteran.  See Bernard v. Brown, 4 
Vet. App. 384 (1993).  The RO has obtained VA outpatient 
treatment records.  The veteran private treatment records 
from Mercy Hospital of Tiffin, and treatise evidence, which 
the Board has reviewed.  An opportunity was provided for the 
veteran to set forth his contentions during the hearing 
before the undersigned Veterans Law Judge.  VA medical 
examinations were afforded the veteran with regard to his 
PTSD in April 2003, June 2004, and February 2005, and with 
regard to his hearing loss disability and in June 2004 and 
February 2005.  

In November 2004, the veteran requested that VA assist him in 
obtaining evidence pertinent to his PTSD from Cleveland State 
University Department of Psychology.  VA requested this 
evidence and received a reply in April 2005 that the evidence 
was not available.  In the October 2005 SSOC, the RO informed 
the veteran of this development.  

Significantly, neither the appellant nor his representative 
has identified, and the record does not otherwise indicate, 
any additional existing evidence that is necessary for a fair 
adjudication of the claim that has not been obtained.  Hence, 
no further notice or assistance to the veteran is required to 
fulfill VA's duty to assist the appellant in the development 
of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 
281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 
Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 
Vet. App. 183 (2002).

ORDER

The appeal with regard to entitlement to service connection 
for shell fragment wounds of the back, jungle rot, emersion 
foot, loss of teeth, residuals of vampire bat bite, residuals 
of rabies shot, a concussion, and with regard to whether new 
and material evidence has been submitted to reopen a claim 
for entitlement to service connection for malaria, is 
dismissed.  

Service connection for tinnitus is granted.  

A compensable evaluation for bilateral hearing loss is 
denied.  

An evaluation in excess of 30 percent disabling for PTSD is 
denied.  


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs