Citation Nr: 1124060 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 07-11 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for positional vertigo, to include as secondary to bilateral sensorineural hearing loss and tinnitus. 2. Entitlement to an initial rating greater than 50 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to a compensable rating prior to May 9, 2007 and an increased rating greater than 10 percent from May 9, 2007 for bilateral sensorineural hearing loss. 4. Entitlement to an increased rating greater than 10 percent for bilateral tinnitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 Regional Office (RO) in Detroit, Michigan rating decision. The Veteran had a hearing before an RO representative in May 2007. A transcript of that proceeding has been associated with the claims file. The above noted March 2006 rating decision continued the Veteran's prior noncompensable rating for his service connected bilateral hearing loss. Thereafter, a subsequent March 2008 rating decision increased the rating to 10 percent, effective November 5, 2007. A January 11, 2010 rating decision made the 10 percent rating effective from May 9, 2007. Regardless of the RO's actions, the issue remains before the Board because the increased rating was not a complete grant of the maximum benefits available. See AB v. Brown, 6 Vet. App. 35 (1993). The Board also observes that the Veteran has separately asserted claims for an earlier effective date for the service connection of his PTSD and bilateral hearing loss. The claims file does not indicate the Veteran has perfected an appeal with respect to these claims as required pursuant to 38 C.F.R. § 20.302 and, therefore, the issues are not on appeal. In addition, the Board notes that during the May 2007 RO hearing the Veteran indicated that he last had "substantial gainful" employment in approximately 2006, thus raising a claim for a total disability evaluation based on individual unemployability (TDIU). However, the Board notes the TDIU claim was separately adjudicated in a November 2009 rating decision, and the claims file does not indicate the Veteran has since expressed a desire to appeal this claim as required pursuant to 38 C.F.R. § 20.1103. Therefore, the issue is not on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (noting in a footnote that claims for increased evaluations and TDIU claims may be separately adjudicated). The issue of entitlement to service connection for positional vertigo is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's PTSD is manifested by symptoms such as sleep difficulties, panic attacks, hypervigilance, avoidance behavior, suicidal ideation, difficulty socializing, and anger, irritability, and concentration problems, all resulting in deficiencies in most areas, but less than total social and occupational impairment. 2. Prior to May 9, 2007, audiometric examinations corresponded to a level I or level II hearing loss for the right ear and a level I or level II hearing loss for the left ear. 3. From May 9, 2007, audiometric examinations correspond to a level IV hearing loss for the right ear and a level IV hearing loss for the left ear. 4. The Veteran's recurrent tinnitus is perceived bilaterally. 5. The 10 percent rating currently in effect is the maximum schedular rating for service-connected tinnitus. 6. The Veteran's PTSD, hearing loss, and tinnitus disabilities do not present an exceptional or unusual disability picture. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2010). 2. Prior to May 9, 2007, a compensable rating for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 4.1, 4.85, DC 6100, 4.86 (2010). 3. From May 9, 2007, a rating greater than 10 percent for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 4.1, 4.85, DC 6100, 4.86 (2010). 4. The claim for an increased rating in excess of 10 percent for bilateral tinnitus is without legal merit. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 4.1, 4.87, DC 6260 (2010). 5. Application of the extraschedular rating provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veterans Claims Assistance Act (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran 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 Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in September 2005, March 2006, July 2008, and November 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b)(1) (2010); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Several of the letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). If any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of his claim. These arguments have referenced the applicable law and regulations necessary for a grant of an increased rating for the various claims. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. In addition, records from the Social Security Administration (SSA) have been associated with the claims file. Private records identified by the Veteran have been associated with the claims file, to the extent available. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2010). With respect to the PTSD claim, the RO provided the Veteran appropriate VA psychiatric examinations in February 2006, November 2007, and January 2009. The VA examination reports are thorough and supported by VA outpatient treatment records. The examination reports discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. The examinations also discussed the impact of the disability on the Veteran's daily living. Based on the examination and the fact there is no rule as to how current an examination must be, the Board concludes the examination in this case is adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As to the hearing loss and tinnitus claims, the RO provided the Veteran appropriate VA audiological examinations in September 2005 and November 2007. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's hearing loss or tinnitus since he was last examined. The Veteran has not reported receiving any recent treatment specifically for these conditions other than the continued use of bilateral hearing aids, and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The VA examination reports are thorough and supported by VA outpatient treatment records. There is no rule as to how current an examination must be, and the Board concludes the examinations in this case are adequate upon which to base a decision in that they were performed by neutral, skilled providers who accurately recited the Veteran's history and the examiners' resulting reports provide the data required to appropriately rate the Veteran's disorders. The examiners specifically noted qualifications of Doctor of Audiology and a Ph.D. See Barr, 21 Vet. App. at 312. In that regard, the Board observes that in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court, noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2009). The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow deficient, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. In this case, the Veteran's representative argued in a May 2011 informal hearing presentation that one or both of the examinations did not adequately discuss the functional effects caused by the Veteran's hearing loss. Unfortunately, the September 2005 and November 2007 VA examination reports do not describe the functional effects caused by the Veteran's hearing loss disability. However, the Board notes that the Court's rationale in requiring an examiner to consider the functional effects of a Veteran's hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b) in considering whether referral for an extra-schedular rating is warranted. Specifically, the Court noted, that "unlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extra-schedular rating is warranted. The Secretary's policy [requiring VA audiologists to describe the effect of a hearing disability on a Veteran's occupational functioning and daily activities] facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application." Martinak, 21 Vet. App. at 455. In this regard, the Board notes that other evidence of record, to include the Veteran's May 2007 RO hearing testimony, reflects that the Veteran has difficulty conversing with others, especially in environments with significant background noise. Therefore, while the VA examinations are defective under Martinak, the Board finds that no prejudice results to the Veteran in that the functional effects of his hearing loss disability are adequately addressed by the remainder of the record and are sufficient for the Board to consider whether referral for an extra-schedular rating is warranted under 38 C.F.R. § 3.321(b). Therefore, the Board finds a remand for a VA examination to further document the functional effects of the Veteran's hearing problems would serve no useful purpose. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). Moreover, with respect to the Veteran's claim for an increased rating for bilateral tinnitus, the U.S. Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In the instant case for an increased rating for bilateral tinnitus, the facts are not in dispute. Resolution of the Veteran's appeal is dependent on interpretation of the regulations pertaining to the assignment of disability ratings for tinnitus. Because there is no reasonable possibility that further notice or assistance would aid in substantiating this claim, any VCAA notice or assistance deficiencies are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Increased Ratings PTSD A March 2005 rating decision granted the Veteran service connection for PTSD and assigned a 50 percent rating. The Veteran claims the rating does not accurately depict the severity of his current condition. Disability ratings are assigned, under a schedule for rating disabilities, based on a comparison of the symptoms found to the criteria in the rating schedule. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2010). 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. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2010). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). Where the issue involves the assignment of an initial rating for a disability following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied. Fenderson v. West, 12 Vet. App. 119 (1999). The General Rating Formula for Mental Disorders provides, in pertinent part: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships . . . . . . . . . . . . . . . . . . . . . . . 50 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 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 name . . . . . . . . . . . . . . . . . . . . . . . . . 100 38 C.F.R. § 4.130, DC 9411 (2010). Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). Id. Additionally, a Global Assessment of Functioning (GAF) score is often used by treating examiners to reflect the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266 (1996). GAF scores ranging between 61 and 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. GAF scores ranging from 51 to 60 reflect 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). Scores ranging from 41 to 50 reflect 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). See 38 C.F.R. § 4.130 (incorporating by reference the VA's adoption of the DSM-IV, for rating purposes). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). In this case, the Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. After a careful review of the record and for reasons and bases expressed immediately below, the Board finds that the medical records as a whole support an increased rating for the Veteran's PTSD to 70 percent, but no more, for all relevant time periods. See 38 C.F.R. § 4.7; Fenderson, 12 Vet. App. at 119. During his May 2007 RO hearing, the Veteran indicated that he began treatment for his psychiatric problems in the 1980s. In February 2006, the Veteran was afforded a VA examination. The examiner noted review of the Veteran's claims file. The Veteran reported working as a carpenter for approximately 33 years after service, not including a one year period immediately after service when he worked for Chrysler. After retiring in 2004, he continued to do small woodworking jobs on the side. He also stated that throughout his work career he preferred to work alone and that he quit multiple jobs due to interpersonal friction and arguments with supervisors. The Veteran indicated that he had been married twice, the first marriage lasted for 22 years and he was currently in the process of divorcing his second wife after about 6 years of marriage. On examination, the Veteran was appropriately dressed and neatly groomed, with fluent and goal-directed speech that was low in volume. His thought processes were logical, with intact critical judgment, fair insight, and grossly unimpaired memory. He was not delusional and denied auditory or visual hallucinations. He admitted to episodic suicidal thoughts without specific plan or intent. He also discussed chronic irritability and short temper, as well as alienation from others, loss of interest, amotivation, and avoidance of crowds and coverage of war. The Veteran denied sleep problems. The examiner diagnosed PTSD and assigned a GAF score of 55. The examiner noted that the Veteran's reported symptoms resulted in moderate industrial impairment and mild social impairment. The Veteran was afforded another VA examination in November 2007, based on his claim of a worsening condition. The examiner noted review of the claims file and medical records. At that time, the Veteran was living alone and reported being unemployed since August 2006, but also noted several jobs from which he was terminated or laid off for having difficulty getting along with others on the job. He reported episodes of anger and decreased motivation and hope for the future. He reported problems with sleep and concentration and a moderate level of depression and indifference. He denied delusions, hallucinations, or feelings of persecution or paranoia. On examination, the Veteran was oriented to person, place, and time, he had a largely unimpaired memory, very good concentration, fair insight, and intact formal operational judgment and problem-solving skills. He indicated that he enjoyed woodworking and had a wood shop that kept him busy. His grooming was satisfactory, had unremarkable speech patterns, euthymic mood, appropriate affect, normal perception, and fair to good insight and judgment. His suicidal risk appeared low. The examiner diagnosed PTSD and assigned a GAF score of 55. In support of his claim, the Veteran submitted a November 2007 letter from the Vet Center noting treatment since April 2007. The symptoms noted in the letter included feelings of detachment, restricted range of affect, irritability, anger outbursts, sleep problems, and hypervigilance. The letter noted that his PTSD was having a "very negative impact" on his relationships, communication skills, and quality of life. An April 2008 letter from a former employer discussed how the Veteran had been removed from a job site and later terminated due to his inability to get along with certain other co-workers. The Veteran was afforded an additional VA examination in January 2009. The examiner noted review of the claims file and medical records. The Veteran reported that he had been fired from 4 jobs during his 30 years of carpentry work due to his anger and difficulty getting along with others on the job. The Veteran noted intermittent depression since the 1970s and reported suicidal thoughts without specific plans or past attempts. The examiner determined that his risk of suicide was low. He indicated significant insomnia, nightmares, decreased energy levels, feelings of hopelessness and anger, and social isolation. On examination, he had good concentration, fair insight, fair formal operational judgment, fair problem-solving skills, fair personal hygiene, largely unimpaired memory, and depressed mood. He denied auditory or visual hallucinations. The examiner diagnosed PTSD and assigned a GAF score of 50. The examiner noted continuing significant difficulty with interpersonal relationships due to hypervigilance, anger, social isolation, and depression. The examiner concluded that the psychiatric and physical problems experienced resulted in significant functional impairment. The Board concludes the objective medical evidence and the Veteran's and his friend's statements regarding his symptomatology show disability that more nearly approximates that which warrants the assignment of a 70 percent disability rating. See 38 C.F.R. § 4.7 (2010). As explained in more detail above, the symptoms throughout the appellate time period are substantially consistent. For this reason, staged ratings are not applicable. See Fenderson, 12 Vet. App. at 119. However, a rating greater than 70 percent is not appropriate for any period of time on appeal because the Veteran does not have total social and occupational impairment. Although the Veteran clearly has a serious disability, he exhibits few, if any, of the symptoms noted as applicable for a 100 percent rating. He does not have gross impairment of 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, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. While the Veteran has expressed suicidal thoughts, he has consistently denied any specific plans or intent. As such, his symptoms appear to more closely approximate those for a 70 percent rating, specifically suicidal or homicidal ideation, but without rising to the level required for a 100 percent rating, specifically a persistent danger of hurting self or others. With respect to the Veteran's occupational impairment, the Board acknowledges some level of impairment. As noted above, the Veteran has been unemployed since approximately 2006, but during his May 2007 RO hearing the Veteran attributed his unemployment primarily to his age and not his PTSD symptoms. In addition, the January 2009 examiner indicated that his physical problems rendered him incapable of performing physical work that required the trade skills of a carpenter, but that he might be able to perform less labor oriented industrial type work where there was less likelihood of injury and more personal safety. During his 30 years as a carpenter, the Veteran was terminated or laid off several jobs because of his anger and inability to get along with certain others, but his resume indicates a near continuous work history, suggesting that his PTSD symptoms alone did not result in total occupational impairment. As such, while the Veteran has some level of occupational impairment, the Board finds that based on the Veteran's statements regarding his work history and the medical evidence of record that he does not have total occupational impairment. In this regard, the Board notes that the 70 percent rating assigned herein is recognition of significant industrial impairment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). As to the Veteran's social impairment, he does have some social isolation, but he has a relationship with his daughter and grandchild, as well as a more distant relationship with his son. In addition, the Veteran's counselor noted during the May 2007 hearing that the Veteran had numerous friends of questionable character, clearly showing that he is able to function in a social environment. Thus, while the Veteran's counselor indicated that the Veteran was overstating his relationship with his daughter and grandchild, additional statements by the counselor regarding the Veteran's friends demonstrates that he does not have total social impairment. Thus, the Veteran does not have total social and occupational impairment. He does have some deficiencies in several areas, but the greater weight of evidence demonstrates that it is to a degree that is contemplated by the 70 percent rating assigned herein. Furthermore, even resolving any reasonable doubt in the Veteran's favor, the Board finds that he does not meet the requirements for an evaluation greater than the assigned 70 percent schedular rating. As noted above, the Veteran does not have any of the symptoms or criteria noted for a 100 percent rating. Moreover, the February 2006 VA examiner noted that the Veteran's PTSD symptoms resulted only in moderate industrial impairment and minor social impairment and the January 2009 concluded that the symptoms resulted in significant functional impairment. The Veteran's private counselor has not specifically stated that he has total social or occupational impairment, but did note significant problems with occupational and social relations. In addition, the GAF scores of 55 during the February 2006 and November 2007 VA examinations are consistent with "moderate" impairment and not total impairment due to his PTSD symptoms and the GAF score of 50 assigned by the January 2009 VA examiner is consistent with a "serious" impairment that is reflected in the 70 percent rating assigned. In summary, for the reasons and bases set forth above, the Board concludes that an increased rating of 70 percent, but no more, is warranted for any time during the appeal period. See Fenderson, 12 Vet. App. at 119. Hearing Loss The evaluation assigned for a service-connected disability is established by comparing the manifestations shown with the criteria in the VA's Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. 38 C.F.R. § 4.85. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Id. Where there is an exceptional pattern of hearing impairment, a rating based on pure tone thresholds alone may be assigned. 38 C.F.R. § 4.86 (a) & (b). Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). 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, 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). It is noteworthy at the outset that hearing loss disability is rated based on audiometry specified by regulation. Inasmuch as any private audiometry test is not in accordance with the regulatory specifications, it may not serve as the basis for the rating assigned. Prior to May 9, 2007 The Veteran claims that the noncompensable rating assigned prior to May 9, 2007 did not accurately depict the nature of his disability. In support of his claim, the Veteran provided a February 2005 private audiogram. The results of the February 2005 private audiological test are as follows, with pure tone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 60 -- 60 LEFT 30 45 60 -- 55 Significantly, the audiological test does not include specific pure tone thresholds bilaterally at 3000 Hz, as necessary for determining the pure tone threshold average necessary for rating the Veteran's level of hearing loss pursuant to 38 C.F.R. § 4.85. Moreover, the Board notes that the audiological test did not indicate the specific controlled speech discrimination test used for the examination. Specifically, it is unclear whether the speech discrimination test was performed using the Maryland CNC test, as required pursuant to 38 C.F.R. § 4.85. The word list requirement in the regulation is very specific and differs from other word lists used to test hearing impairment. In this instance, it is unclear from the private report what test was used. The Board has considered this oversight in light of the Court's recent holding in Savage v. Shinseki, No. 09-4406 (Vet. App., January 4, 2011) that held in certain circumstances VA has an obligation to seek clarification of a private medical examination report. In this case, the Board finds that such clarification is unnecessary. Speech audiometry revealed speech recognition ability as 96 percent for the right ear and 100 percent for the left ear. Even were the Board to presume that the testing used the Maryland CNC test and that the Veteran's pure tone threshold at 3000 Hz was comparable to the thresholds at 2000 and 4000 Hz, using Table VI in 38 C.F.R. § 4.85, the Veteran would receive a numeric designation of I for both the right and left ears. Such a degree of hearing loss warrants only a noncompensable evaluation under Table VII. The Board notes that it also considered the alternative rating scheme for exceptional patterns of hearing impairment and found it inapplicable here. See 38 C.F.R. § 4.86 (a) & (b). The Veteran underwent a VA examination in September 2005. The results of the September 2005 VA audiological test are as follows, with pure tone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 55 60 60 LEFT 30 45 60 60 55 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 84 percent for each ear. The average of the pure tones between 1000-4000 Hz was 53 for the right ear and 55 for the left. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of II for the right ear and II for the left ear. Such a degree of hearing loss warrants only a noncompensable evaluation under Table VII. The Board notes that it also considered the alternative rating scheme for exceptional patterns of hearing impairment and found it inapplicable here. See 38 C.F.R. § 4.86 (a) & (b). In support of his claim, the Veteran also provided a May 3, 2007 private audiogram. The results of the May 3, 2007 private audiological test are as follows, with pure tone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 70 70 60 LEFT 40 50 65 60 55 The average of the pure tones between 1000-4000 Hz was 61.25 for the right ear and 57.5 for the left. As above, the private audiological test did not indicate the specific controlled speech discrimination test used for the examination. Speech audiometry revealed speech recognition ability as 92 percent for each ear. Even were the Board to presume that the testing used the Maryland CNC test, using Table VI in 38 C.F.R. § 4.85, the Veteran would receive a numeric designation of II for both the right and left ears. Such a degree of hearing loss warrants only a noncompensable evaluation under Table VII. The Board notes that it also considered the alternative rating scheme for exceptional patterns of hearing impairment and found it inapplicable here. See 38 C.F.R. § 4.86 (a) & (b). The Board has considered the lay statements provided by the Veteran regarding his difficulty hearing. As was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. The probative medical evidence does not show the Veteran's hearing loss reached a compensable level at any point during the appellate period prior to May 9, 2007. Staged ratings for the period prior to May 9, 2007, therefore, are inapplicable here. See Hart, 21 Vet. App. at 505. Considering the results of the VA and private examinations, entitlement to a compensable rating prior to May 9, 2007 is denied. From May 9, 2007 The Veteran claims that the 10 percent rating assigned from May 9, 2007 does not accurately depict the current nature of his disability. The Veteran underwent a VA audiology examination in November 2007. The results of the November 2007 VA audiological test are as follows, with pure tone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 65 70 65 LEFT 40 50 65 65 65 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 80 percent for both the right and the left ear. The average of the pure tones between 1000-4000 Hz was 61 for the right ear and 61 for the left. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of IV for the right ear and IV for the left ear. Such a degree of hearing loss warrants a 10 percent evaluation under Table VII. The Board notes that it also considered the alternative rating scheme for exceptional patterns of hearing impairment and found it inapplicable here. See 38 C.F.R. § 4.86 (a) & (b). The Board has considered the lay statements provided by the Veteran. As was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. Here, there is no evidence of a change in the Veteran's hearing since the November 2007 examination and, therefore, nothing to suggest that an additional VA examination would be beneficial. The probative medical evidence does not show the Veteran's hearing loss has ever reached a compensable level greater than 10 percent from May 9, 2007. Staged ratings from May 9, 2007, therefore, are inapplicable here. See Hart, 21 Vet. App. at 505. Considering the results of the VA examination, entitlement to rating greater than 10 percent is denied. Tinnitus The Veteran initially was granted a 10 percent rating for tinnitus in a July 1993 rating decision. The Veteran claims that the 10 percent rating does not accurately depict the current level of his disability. Disability evaluations are determined by application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2010); see also Esteban v. Brown, 6 Vet. App. 259, 261(1994). However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14 (2010); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The regulations pertaining to the evaluation of diseases and injuries of the ears were revised effective June 10, 1999. See 64 Fed. Reg. 25, 202 (1999) (codified at 38 C.F.R. § 4.85-4.87 (2002)). The regulation was again revised in May 2003, effective June 13, 2003. See 68 Fed. Reg. 25,822 (2003). The June 13, 2003 revision was undertaken, in part, to clarify existing VA practice that only a single 10 percent evaluation is assigned for recurrent tinnitus pursuant to DC 6260, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, DC 6260, Note 2 (2010). In this case, the Veteran filed his claim in August 2005, which was after the June 2003 change that clarified that only a single 10 percent evaluation is assigned for recurrent tinnitus pursuant to DC 6260, whether the sound is perceived as being in one ear, both ears, or in the head. Therefore, no more than a single 10 percent rating is permissible for the Veteran's tinnitus. See also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (affirming the VA's long-standing interpretation of pre-June 13, 2003 DC 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral). In light of the foregoing, the Board concludes that DC 6260 precludes separate 10 percent schedular ratings for bilateral tinnitus. As such, the Veteran's claim for a compensable evaluation greater than 10 percent for his service-connected tinnitus must be denied. As the disposition of this claim is based on interpretation of the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Extraschedular Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2010). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected PTSD, hearing loss, and tinnitus are inadequate. A comparison between the level of severity and symptomatology of the Veteran's PTSD, hearing loss, and tinnitus with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, with respect to the PTSD, the Veteran reports multiple psychiatric symptoms, including severe sleep difficulties, hypervigilance, avoidance behavior, suicidal ideation, difficulty socializing, and anger problems. The current 70 percent rating under DC 9411 contemplates these and other psychiatric symptoms. Thus, the Veteran's current schedular rating under DC 9411 is adequate to fully compensate him for his disability on appeal. With respect to the hearing loss and tinnitus, the Veteran reports a noise like birds singing in his ears and difficulty understanding speech in adverse listening environments, to include crowded areas. The Board notes that tinnitus is defined as "a noise in the ears such as ringing, buzzing, roaring, or clicking." Smith v. Principi, 17 Vet. App. 168, 170 (2003) (quoting Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994)). Thus, the Veteran reports that he experiences ringing, buzzing, or chirping that causes him difficulty hearing and sleeping. This is the precise symptomatology and effects contemplated by schedular criteria. Furthermore, as to his hearing loss disability, the Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Therefore, the Veteran's struggle to comprehend verbal conversations is a factor contemplated in the regulations and rating criteria as defined. The simple fact that the Veteran's hearing disability does not satisfy the numerical criteria for a compensable rating prior to May 9, 2007 and a rating greater than 10 percent from May 9, 2007 under these criteria, to include the criteria specifically designed for the type of real-world impairment experienced by the Veteran, does not place his symptomatology outside of that contemplated by the rating schedule or make application of the rating schedule impracticable in this case. Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to a rating of 70 percent for PTSD is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to a compensable rating prior to May 9, 2007 and an increased rating greater than 10 percent from May 9, 2007 for bilateral sensorineural hearing loss is denied. Entitlement to an increased rating greater than 10 percent for bilateral tinnitus is denied. REMAND The Veteran is seeking entitlement to service connection for positional vertigo. After a thorough review of the Veteran's claims file, the Board has determined that additional development is necessary prior to the adjudication of the claim. The Veteran claims to have experienced dizziness and associated problems that he attributes to his service-connected bilateral hearing loss. The Veteran claims that he has been diagnosed with positional vertigo by a private physician and discussed evidence during the May 2007 RO hearing that vertigo was due to a disorder of the inner ear. Initially, the Board notes that the Veteran has not submitted records from his private physician documenting the diagnosis of positional vertigo. In that regard, however, the Veteran is competent to report a contemporaneous diagnosis of a disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of: (1) a current disability; (2) an in-service event, injury, or disease; and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4) (2010); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, given the Veteran's statements regarding a diagnosis of positional vertigo and the potential relationship between this inner ear problem and the Veteran's service-connected bilateral hearing loss and tinnitus, the Board finds that a VA examination is warranted to clarify the issue. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). In addition, the Board observes that the various notice letters provided to the Veteran have not addressed the requirements for establishing service connection on a secondary basis. Thus, upon remand, the Veteran also should be given appropriate VCAA notice, specifically to include notice of the requirements for establishing secondary service connection according to 38 C.F.R. § 3.310. Accordingly, the case is REMANDED for the following action: 1. Ensure that all VCAA notice obligations are satisfied in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A, implementing regulations, interpretative precedent Court decisions, and any other applicable legal precedent. In particular, the veteran should be informed of how to establish his claim of secondary service connection under 38 C.F.R. § 3.310. 2. Schedule the Veteran for an appropriate VA examination for his claimed positional vertigo. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, conducting all appropriate diagnostic and physical testing, and obtaining a complete history from the Veteran, the examiner should document any current vestibular disability and render an opinion as to whether it is at least as likely as not that any currently existing vestibular disability: (a) had its onset during military service, (b) is otherwise caused or aggravated by any incident of his military service, or (c) was caused or aggravated by his service-connected bilateral hearing loss or tinnitus. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. After the above is complete, readjudicate the Veteran's claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. 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. 2010). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs