Citation Nr: 1014285 Decision Date: 04/15/10 Archive Date: 04/29/10 DOCKET NO. 05-40 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 10 percent for hypertension. 2. Entitlement to a rating in excess of 10 percent for bilateral hearing loss prior to December 27, 2007, and to a rating in excess of 20 percent thereafter. 3. Entitlement to a compensable rating for gout prior to January 2, 2008, and to a rating in excess of 20 percent thereafter. 4. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 5. Entitlement to service connection for degenerative joint disease of the right knee. 6. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to herbicide exposure. 7. Entitlement to service connection for a prostate disorder, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from April 1951 to January 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran provided testimony before personnel at the RO in August 2007. A transcript of this hearing has been associated with the Veteran's VA claims folder. For good cause shown, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). For the reasons addressed in the REMAND portion of the decision below, the Board concludes that further development is required with respect to the Veteran's claims of service connection for a right knee disorder and a prostate disorder. Accordingly, these issues are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The record reflects the Veteran has raised the issue of entitlement to a total rating based upon individual unemployability (TDIU) as due to all of his service-connected disabilities, not just the disabilities that are the subject of this appeal. Further, the record reflects the RO has begun development of this claim, to include correspondence sent to the Veteran regarding this claim in May 2009. However, the record before the Board does not reflect his claim has, as yet, been formally adjudicated. Therefore, the Board does not have jurisdiction over this claim, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. All reasonable development and notification necessary for the equitable disposition of the instant case have been completed. 2. The Veteran's hypertension has not been manifested by diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more. 3. Prior to December 27, 2007, the Veteran's right ear had Level V hearing, and Level II hearing in the left ear. 4. From December 27, 2007, the Veteran's right ear had Level VI and V hearing (respectively on two examinations ), and Level IV and V hearing (respectively) in the left ear. 5. Prior to January 2, 2008, the Veteran's gout was not manifested by one or two exacerbations a year in a well- established diagnosis; nor chronic residuals of gouty arthritis. 6. From January 2, 2008, the Veteran's gout has not been manifested by symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year. 7. The Veteran's PTSD is not manifested by 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 maintain effective work and social relationships. 8. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran's COPD was incurred in or otherwise the result of active service, to include as due to herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for hypertension are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.104, Diagnostic Code 7101(2009). 2. The criteria for a rating in excess of 10 percent for hearing loss prior to December 27, 2007, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.85, Diagnostic Code 6100 (2009). 3. The criteria for a rating in excess of 20 percent for hearing loss as of and since December 27, 2007, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.85, Diagnostic Code 6100 (2009). 4. The criteria for a compensable rating for gout prior to January 2, 2008, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.31, 4.71a, Diagnostic Code 5002-5017 (2009). 5. The criteria for a rating in excess of 20 percent for gout as of and since January 2, 2008, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, , 4.71a, Diagnostic Code 5002-5017 (2009). 6. The criteria for a rating in excess of 30 percent for PTSD are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.130, Diagnostic Code 9411 (2009). 7. COPD was not incurred in or aggravated by active service, to include as due to herbicide exposure. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was sent VCAA-compliant notice regarding the current appellate claims via letters dated in April 2003, March 2005, June 2005, March 2006, February 2007, December 2007, April 2008, November 2009, and January 2009. Although not all of these letters were sent prior to the initial adjudication of the claims as required by Pelegrini v. Principi, 18 Vet. App. 112 (2004), they were all sent prior to the RO's most recent readjudication of these claims via an April 2009 Supplemental Statement of the Case (SSOC). This development "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Taken together, the aforementioned VCAA letters informed the Veteran of what was necessary to substantiate his current appellate claim, what information and evidence he must submit, what information and evidence will be obtained by VA, and the need for the Veteran to advise VA of or to submit any evidence in his possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio, supra. Moreover, the March 2006 and December 2007 letters included information regarding disability rating(s) and effective date(s) as mandated by the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, one of the November 2007 letters included the regulatory criteria for evaluating the Veteran's PTSD, hypertension, hearing loss, and gout. (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the August 2007 RO hearing. Nothing indicates the Veteran has identified the existence of any relevant evidence that has not been obtained or requested. Moreover, he was accorded VA medical examinations regarding this case in October 2003, November 2003, May 2005, October 2005, December 2007, January 2008, and March 2009. These examinations included detailed findings as to the symptomatology of the Veteran's hypertension, hearing loss, gout, and PTSD, which are consistent with the treatment records and relevant regulatory criteria. The Veteran has not identified any inaccuracies with respect to the findings of these examinations or otherwise identified any prejudice therein. Accordingly, the Board finds that this examination is adequate for resolution of this case. For the reasons detailed below, the Board finds that no competent medical examination or opinion is required for resolution of the COPD claim. Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). I. Increased Ratings General legal criteria Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. More recently, it was held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In fact, the Veteran is already in receipt of staged ratings for his hearing loss and gout in this case. With regard to the Veteran's request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). Analysis -- Hypertension Under Diagnostic Code 7101, a rating of 10 percent is warranted for hypertensive vascular disease where the diastolic pressure is predominantly 100 or more; or systolic pressure is predominantly 160 or more; or when continuous medication is shown necessary for the control of hypertension and there is a history of diastolic blood pressure of predominantly 100 or more. A 20 percent evaluation requires diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more. A 40 percent evaluation requires diastolic pressure of predominantly 120 or more. A 60 percent evaluation requires diastolic pressure of predominantly 130 or more. Hypertension or isolated systolic hypertension must be confirmed by readings taken 2 or more times on at least 3 different days. The term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104. In this case, the Veteran's hypertension has not been manifested by diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more. For example, the October 2003 VA examination shows blood pressure readings of 131/71 (systolic/diastolic), 127/77, and 144/79; one May 2005 VA examination shows a blood pressure reading of 115/68, while another shows a blood pressure reading of 116/68; and the March 2009 VA examination shows blood pressure readings of 119/83, 114/78, and 115/76. There is also no indication of any such blood pressure readings in the treatment records on file. In pertinent part, records show a blood pressure reading of 144/96 in February 2001; 136/84 in May 2001; 134/82 in June 2002; 120/70 in July 2003; 110/70 in August 2003; 123/75 in November 2003; 125/71 and 138/80 in February 2004; 100/70 in July 2004; 120/78 in October 2004; 130/80 in January 2005; 110/70 in March 2005; 124/74 in May 2005; 118/67 in November 2005; 120/78 in January 2006; 158/80 in February 2006; 102/56 in September 2006; 116/56 in December 2006; 120/69 in March 2007; 107/61 in April 2007; 106/60 in June 2007; 113/68 in July 2007; 106/64 in October 2007; 105/52 in January 2008; 104/60 in March 2008; 130/77 in December 2008; and 106/61 in April 2009. In view of the foregoing, the Board finds that there were no distinctive periods where the Veteran met or nearly approximated the criteria for a rating in excess of 10 percent for his service-connected hypertension under Diagnostic Code 7101. Analysis - Hearing loss The Veteran's hearing loss disability is rated in accordance with the provisions found at 38 C.F.R. §§ 4.85-4.87. Current VA rating criteria for the evaluation of hearing loss disability provide ratings from zero (noncompensable) to 100 percent, based on the results of controlled speech discrimination tests together with the results of pure tone audiometry tests which average pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. §§ 4.85-4.87; Diagnostic Codes 6100 to 6110. The evaluation of hearing impairment applies a rather structured formula which is essentially a mechanical application of the rating schedule to numeric designations after audiology evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. 38 C.F.R. § 4.86. Further, when the average puretone threshold is 30 decibels 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Id. As detailed below, the Board observes that the audiological evaluations accorded to the Veteran do not reflect that the pure tone threshold at each of the four specified frequencies is 55 decibels or more, nor is the average puretone threshold 30 decibels at 1000 Hertz, and 70 decibels or more at 2000 Hertz. Therefore, Table VIa is not for consideration in the instant case. Prior to December 27, 2007, the Veteran had Level V hearing in the right ear, and Level II for the left. For example, the November 2003 VA audio examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 Average RIGHT 20 50 60 75 70 64 LEFT 20 40 70 55 55 55 Speech recognition scores were 68 percent for the right ear, and 84 percent for the left ear. Under Table VI, these results correspond to Level V hearing for the right ear, and Level II hearing for the left ear. These results correspond to a 10 percent rating under Table VII. The December 27, 2007, VA audio examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 Average RIGHT 15 45 65 65 65 60 LEFT 20 45 70 55 60 58 Speech recognition scores were 64 percent for the right ear, and 76 percent for the left ear. Under Table VI, these results correspond to Level VI hearing for the right ear, and Level IV for the left ear. These results correspond to a 20 percent rating pursuant to Table VII. Finally, the March 2009 VA audio examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 Average RIGHT 15 50 65 65 70 63 LEFT 15 40 70 65 65 60 Speech recognition scores were 72 percent for the right ear, and 68 percent for the left ear. Under Table VI, these results correspond to Level V hearing for both ears. These results also correspond to a 20 percent rating pursuant to Table VII. Analysis -- Gout Diagnostic Code 5017 provides that gout is to be rated under Diagnostic Code 5002 (rheumatoid arthritis). 38 C.F.R. § 4.71a. In pertinent part, Diagnostic Code 5002 provides that rheumatoid arthritis will be rated based on either as an active process or on the basis of chronic residuals, and the higher rating will be assigned. Ratings for rheumatoid arthritis as an active process will not be combined with the residual ratings for limitation of motion or ankylosis. Under Diagnostic Code 5002, rheumatoid arthritis as an active process is to be assigned a 20 percent evaluation for one or two exacerbations a year in a well-established diagnosis; a 40 percent evaluation for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year; 60 percent evaluation for symptoms that are less than criteria for 100 percent rating, but with weight loss and anemia, that are productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods; and a 100 percent evaluation for constitutional manifestations associated with active joint involvement that is totally incapacitating. In addition, under Diagnostic Code 5002, chronic residuals such as limitation of motion or favorable or unfavorable ankylosis are to be rated under the appropriate diagnostic codes for the specific joints involved. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Prior to January 2, 2008, the Veteran's gout was not manifested by one or two exacerbations a year in a well- established diagnosis, nor chronic residuals of gouty arthritis. For example, the Veteran reported at the October 2003 VA examination that he had had occasionally flare-ups of gout, but they were usually controlled. The flare-ups usually involved the ankles and toes. However, he reported no recent acute gouty attacks. Further, examination of the feet revealed no gross deformities of the toes or ankles. There was no edema, erythema, or effusion. Records dated in November 2003 note that his gout was stable on medication. A May 2005 VA feet examination contained no findings indicative of gout. There was no indication of limitation of motion of either ankle. See 38 C.F.R. § 4.71, Plate II. There was no pain noted during range of motion testing; palpation elicited no pain; and there was no tenderness or swelling noted on either of the feet. Moreover, there had been no incapacitating periods for the past 12 months. Although records dated in 2006 note treatment for pustular tinea pedis, there is no indication that this condition was due to the service-connected gout. In fact, a thorough review of the record indicates no distinctive period(s) where the Veteran experienced any impairment due to his service- connected gout prior to January 2, 2008. From January 2, 2008, the Veteran's gout has not been manifested by symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year. The January 2008 VA examination indicated that the Veteran was currently experiencing symptoms of gout in his left ankle, but did not have much difficulty with his toes at present. The examination also noted there had been two (2) incapacitating episodes per year. He was treated for complaints of swollen ankles and legs in February 2008. However, the March 2009 VA examination noted that primary care visits during the past year had not mentioned any acute episodes of gouty arthritis. Further, the examination itself found various impairments relating to the Veteran's feet, but concluded that there was no evidence of gouty arthritis on current examination. For these reasons, the Board finds that the Veteran was not entitled to a compensable rating for his gout prior to January 2, 2008, nor a rating in excess of 20 percent thereafter. Analysis -- PTSD Diagnostic Code 9411 provides that PTSD is evaluated under the general rating formula used to rate psychiatric disabilities other than eating disorders, pursuant to 38 C.F.R. § 4.130. When a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication, a noncompensable (zero percent) evaluation is warranted. Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication warrants a 10 percent evaluation. A 30 percent disability rating is in order when 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). A 50 percent rating is warranted when 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 (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 maintain effective work and social relationships. A 70 percent rating 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; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is 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. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation 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. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). In this case, the Veteran's PTSD is manifested by chronic sleep impairment, depression, anxiety, and mild memory loss. However, such symptomatology is associated with the current 30 percent rating. As such, this symptomatology does not warrant a higher rating. The Veteran's PTSD is not manifested by 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 maintain effective work and social relationships. The record does not appear to show the Veteran's PTSD has been consistently manifested by flattened affect. Rather, the most recent VA examination of March 2009 found his affect to be appropriate. On an October 2005 VA examination, it was noted that the Veteran could communicate well. Subsequent VA examinations in January 2008 and March 2009 both found his speech to be unremarkable. Nothing in the treatment records otherwise indicates his speech has resulted in circumstantial, circumlocutory, or stereotyped, speech. The Board further notes that there is no indication that the Veteran experiences panic attacks more than once a week. In fact, the March 2009 VA examination specifically found he experienced no panic attacks. The Veteran has been consistently found to be competent throughout the pendency of this case. Moreover, both the January 2008 and March 2009 VA examinations found his intelligence to be average, with his thought process and content were unremarkable. As such, it does not appear his PTSD has resulted in the type of difficulty in understanding complex commands and/or impairment of abstract thinking contemplated by the next higher rating of 50 percent under Diagnostic Code 9411. The Board acknowledges that the Veteran's PTSD has resulted in impairment of memory. However, the October 2005 VA examination found that his memory, both recent and remote, was fair. His remote memory was found to be normal on the subsequent January 2008 VA examination, although his recent memory was found to be severely impaired, and his immediate memory mildly impaired. His remote memory was again found to be normal on the March 2009 VA examination, while recent and immediate memory were only mildly impaired. As such, the record indicates the Veteran has only experienced the type of mild memory loss contemplated by the current 30 percent rating, and not the type of impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks) contemplated by the next higher rating of 50 percent. Similarly, the Board observes that the only disturbances of motivation or mood caused by the service-connected PTSD is the already acknowledged depression and anxiety. As already stated, such symptomatology is contemplated by the current 30 percent rating. Regarding judgment, both the January 2008 and March 2009 VA examinations found the Veteran understood the outcome of his behavior, and there had been no inappropriate behavior. Therefore, there does not appear to be any impaired judgement to the extent necessary for the next higher rating of 50 percent under Diagnostic Code 9411. The Board acknowledges that the Veteran's PTSD has resulted in occupational and social impairment. However, all compensable evaluations under the schedular criteria include such impairment. Therefore, the issue is whether the level of the Veteran's occupational and social impairment is of such severity as to warrant a rating in excess of 30 percent. The Board observes that the October 2005 VA examination noted that the Veteran had very few friends, and that most of the time he stayed home and worked around the house. He also reported an occasional argument with his wife. However, the record reflects he has been married to his wife for many years. The January 2008 VA examination noted he was active in a few organizations and had family support. More recently, the March 2009 VA examination noted he had a positive relationship with his wife and children. Moreover, he enjoyed spending time with his siblings and church friends. The Board notes that the Veteran is not currently employed. However, the record reflects he retired from his occupation as a police officer in 1997. The October 2005 VA examination noted that when he was working, the Veteran got along well with other policeman and his boss. Further, the March 2009 VA examination noted he retired in 1997 because he was eligible by age or duration of work. Of particular importance in evaluating the Veteran's level of occupational and social impairment are the global assessment of functioning (GAF) scores he has been assigned, because such designations are based on a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). In this case, the October 2005 VA examination assigned a GAF score of 60, the January 2008 VA examination assigned a score of 66, and the March 2009 VA examination assigned a score of 65. None of the treatment records reflect the Veteran received a GAF of less than 60 during the pendency of this case. In fact, records dated in September 2006 shows a GAF of 75, while records dated in July 2008 shows a GAF of 72. GAF scores ranging between 71 and 80 reflect that if symptoms are present they 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). GAF scores ranging between 61 to 70 reflect 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 generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Washington, DC, American Psychiatric Association, 1994 (DSM-IV) (which has been adopted by the VA in 38 C.F.R. §§ 4.125, 4.130); see also Carpenter, supra. In short, on competent medical evaluation, the Veteran's PTSD has been found to result in no more than mild to moderate occupational and social impairment. The Board also observes that both the January 2008 and March 2009 VA examinations found the Veteran did not have total occupational and social impairment due to PTSD signs and symptoms. In addition, the January 2008 examination found he did not have reduced reliability and productivity due to PTSD symptoms. There was no impairment of household chores, toileting, grooming, shopping, self-feeding, driving, dressing/undressing, or other recreational activities. He only had slight impairment regarding traveling, and moderate impairment in engaging in sports/exercise. The Board further observes that the record has consistently found the Veteran's PTSD has not resulted in hallucinations or delusions. The October 2005 VA examination noted that he was free from any psychotic symptoms. Both the January 2008 and March 2009 VA examinations found he had no history of suicide attempts, violence/assaultiveness, inappropriate behavior, or obsessive/ritualistic behavior. In view of the foregoing, the Board finds that the Veteran's PTSD is adequately reflected by the current 30 percent rating, and the record does not reflect there were any distinctive periods during the pendency of this case where he met or nearly approximated the criteria for a higher rating under Diagnostic Code 9411. Other considerations In making the above determinations, the Board notes that it considered whether staged ratings under Fenderson, supra, and Hart, supra, were appropriate. As detailed above, it found that no such staged ratings were warranted other than those currently in effect. In other words, the Board found that the severity of the Veteran's service-connected hypertension, hearing loss, gout, and PTSD were adequately reflected by the current schedular evaluations, and that there were no distinctive period(s) where any of these disabilities satisfied the criteria for a higher rating. In exceptional cases where the schedular ratings are found to be inadequate, an extraschedular disability rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The United States Court of Appeals for Veterans Claims (Court) has held that the question of an extraschedular rating is a component of a veteran's claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 157 (1996). However, under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. Here, it does not appear that the RO has evaluated whether the Veteran is entitled to extraschedular ratings, and the Veteran has not raised the matter himself. The Board therefore is without authority to consider the matter of extraschedular ratings. The Veteran is free to raise this as a separate issue with the RO if he so desires. Lastly, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a TDIU is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, as detailed in the Introduction, even though the Veteran has contended he is entitled to a TDIU, he has indicated that it is due to all of his service-connected disabilities, not just the hypertension, hearing loss, gout, and PTSD. In addition to these disabilities, he is service-connected for coronary artery disease with left atrial enlargement; residuals of 3rd degree burns of the right lower abdomen, right groin, anterior thigh and lower chest; pes planus; tinnitus; simple fracture of the left 2nd metatarsal laceration of the scalp; residuals of burns of the right shoulder; and donor site graft scar, left thigh. Moreover, even if the Board were to find that TDIU was properly before it for consideration, it has determined that further development is required with respect to the right knee and prostate claims. As resolution of these claims may affect entitlement to a TDIU, the Board would have to defer adjudication of this claim until after this development has been concluded. Therefore, the Board finds that no further discussion of entitlement to a TDIU is warranted in this case. II. Service Connection General legal criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West , 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Analysis - COPD In this case, the Board observes that a thorough review of the Veteran's service treatment records contain no findings indicative of COPD, nor any other respiratory disorder, while on active duty. For example, his lungs and chest were consistently evaluated as normal on service examinations including February 1961, November 1963, November 1966, and his September 1971 retirement examination. Moreover, the Veteran indicated on Reports of Medical History, including the one completed concurrent with his September 1971 retirement examination, that he had no experienced chronic or frequent colds, asthma, shortness of breath, pain or pressure in chest, or chronic cough. Moreover, no such disability was found on a March 1972 VA medical examination. Rather, on evaluation of the respiratory system it was noted that his lung fields were clear to percussion and auscultation. In fact, the first competent medical evidence of COPD appears many years after the Veteran's active service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (The normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim.). The Board notes that the Veteran has not indicated that his COPD is directly due to a disease or injury incurred in or aggravated by his active service, to include any symptomatology capable of lay observation in accord with Jandreau, supra. Rather, his claim appears to be based solely on purported herbicide exposure. He has not identified, nor does the record reflect, he is entitled to consideration of any other presumptive provisions found at 38 C.F.R. § 3.309, nor that his COPD is secondary to a service-connected disability in accord with 38 C.F.R. § 3.310. Regarding the purported herbicide exposure, the law provided that if a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For purposes of this section, the term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to a herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e), Note 2. For the purposes of § 3.307, the term herbicide agent means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered a herbicide agent and will be so considered in this decision. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). In this case, the record confirms the Veteran had active service in the Republic of Vietnam, and was presumptively exposed to herbicides therein. See 38 U.S.C.A. § 1116. However, as detailed above, COPD is not one of the conditions presumptively associated with such exposure under 38 C.F.R. § 3.309(e). The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); 61 Fed. Reg. 57586-57589 (1996); Notice 68 Fed. Reg. 27,630-27,641 (2003). Even though the presumptive service connection is not warranted, the Veteran is not precluded from establishing service connection for COPD with proof of actual direct causation from exposure from an herbicide agent or other link to service. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, as detailed above there is no indication of any such disability in the record, nor does the Veteran contend that his COPD is directly due to a disease or injury incurred in or aggravated by his active service. Therefore, there is no basis to award service connection as directly related to active service, nor to order additional development such as a VA medical examination or opinion. Simply put, there is no relevant complaint or clinical finding for a clinician to link the COPD to the Veteran's military service. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (a medical opinion that is based on the veteran's recitation of medical history, and unsupported by clinical findings, is not probative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty); Black v. Brown, 5 Vet. App. 177, 180 (1995) (A medical opinion is inadequate when unsupported by clinical evidence). For these reasons, the Board finds that the preponderance of the competent medical and other evidence of record is against the Veteran's claim of service connection for COPD, and it must be denied. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to a rating in excess of 10 percent for hypertension is denied. Entitlement to a rating in excess of 10 percent for bilateral hearing loss prior to December 27, 2007, is denied. Entitlement to a rating in excess of 20 percent for bilateral hearing loss from December 27, 2007, is denied. Entitlement to a compensable rating for gout prior to January 2, 2008, is denied. Entitlement to rating in excess of 20 percent for gout from January 2, 2008, is denied. Entitlement to a rating in excess of 30 percent for PTSD is denied. Entitlement to service connection for COPD, to include as due to herbicide exposure, is denied. REMAND The Board observes that, unlike his COPD claim, the Veteran's service treatment records do include findings indicative of the right knee and prostate problems. For example, he was treated for chronic prostatitis in August 1951, and a sprained right knee in February 1953. Although neither disability is demonstrated on his September 1971 retirement examination or the March 1972 VA medical examination, this does not change the fact that no competent medical opinion is of record which addresses the etiology of either disability. Moreover, the exact nature of his current prostate condition is not clear from the record. Therefore, the Board finds that VA medical examination(s) and opinions are required in order to adequately adjudicate these claims. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). Since the Board has determined that a new examination is necessary in the instant case, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. The AMC/RO should obtain the names and addresses of all medical care providers who have treated the Veteran for his right knee and prostate since April 2009. After securing any necessary release, the RO should obtain those records not on file. 2. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination(s) to determine the current nature and etiology of his right knee and prostate disorders. The claims folder should be made available to the examiner(s) for review before the examination; the examiner(s) must indicate that the claims folder was reviewed to include service medical records which show that he was treated for chronic prostatitis in August 1951, and a sprained right knee in February 1953. Following examination of the Veteran, it should be specifically stated whether he currently has a chronic disability of the right knee and/or prostate. For any such disability diagnosed on examination, the examiner(s) must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that any such disability was incurred in or otherwise the result of active service. A complete rationale for any opinion expressed should be provided. 3. Thereafter, the AMC/RO should review the claims folder to ensure that the foregoing requested development has been completed. In particular, the AMC/RO should review the examination report(s) to ensure that it is responsive to and in compliance with the directives of this remand and if not, the AMC/RO should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing any additional development deemed necessary, the AMC/RO should readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a SSOC which addresses all of the evidence obtained after the issuance of the last SSOC in April 2009, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs