Citation Nr: 1126864 Decision Date: 07/19/11 Archive Date: 07/29/11 DOCKET NO. 10-27 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for post traumatic stress disorder (PTSD), currently rated as 30 percent disabling. 2. Entitlement to an increased rating for tinnitus, currently rated as 10 percent disabling. 3. Entitlement to an increased rating for right posterior thigh numbness, currently rated as 10 percent disabling. 4. Entitlement to an increased rating for bilateral hearing loss, currently rated as 0 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Timothy S. Hoseth, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from March 1966 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in November 2009, a statement of the case was issued in June 2010, and a substantive appeal was received in June 2010. The Board observes that the October 2009 rating decision continued the 10 percent disability rating for the Veteran's service-connected multiple shell fragment wound scars. The Veteran's November 2009 notice of disagreement included the multiple shell fragment wound scars issue. Then, a May 2010 RO rating decision increased the rating for multiple shell fragment wound scars from 10 percent to 30 percent disabling, effective March 3, 2009. The Veteran subsequently omitted this issue from his June 2010 substantive appeal. Thus, this issue is not currently in appellate status. 38 U.S.C.A. § 7105(b), (d) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2010). Where a Veteran claims entitlement to an increased evaluation for a service connected disability and the file contains evidence ore allegations of unemployment, a claim of entitlement to a finding of total disability based on individual unemployability (TDIU) must be inferred as part and parcel of the increase claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, although the appeal involves allegations of increased rating, and the Veteran is unemployed, he has not alleged that his service connected disabilities are the cause of such. The Veteran retired in 2004. His allegations of difficulty now finding a job are general, and unrelated by him to any service connected disabilities or disability. TDIU is therefore not formally considered. FINDINGS OF FACT 1. The Veteran's PTSD is productive of no more than 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, chronic sleep impairment. 2. The Veteran's PTSD has not been characterized generally by such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech; 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; gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability 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. 3. In a July 2010 written communication, the Veteran's representative withdrew the appeal for an increased rating for tinnitus, currently rated as 10 percent disabling. 4. The Veteran's right posterior thigh numbness is manifested by severe to complete paralysis of the external cutaneous nerve of the thigh; there is no quadriceps impairment. 5. The Veteran's bilateral hearing loss is manifested by no more than Level I hearing impairment in the right ear and no more than Level II hearing impairment in the left ear. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for the Veteran's PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2010). 2. The criteria for withdrawal of an appeal have been met for entitlement to an increased rating for tinnitus, currently rated as 10 percent disabling, and the Board does not have appellate jurisdiction. 38 U.S.C.A. § 7105(b), (d) (West 2002); 38 C.F.R. § 20.204 (2010). 3. The criteria for an evaluation in excess of 10 percent for the Veteran's right posterior thigh numbness have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8599-8529 (2010). 4. The criteria for an evaluation in excess of 0 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify and assist claimants. I. Notice The VCAA provides that VA has a duty to notify claimants of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in May 2009. This notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The claimant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA. The United States Court of Appeals for Veterans Claims (Court), in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), purported to clarify VA's notice obligations in increased rating claims. The Court held that a notice letter must inform the Veteran that, to substantiate a claim, he or he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. The Court also held that where the claimant is rated under a diagnostic code that contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life, the notice letter must provide at least general notice of that requirement. The Board points out that the U.S. Court of Appeals for the Federal Circuit recently reversed the Court's holding in Vazquez, to the extent the Court imposed a requirement that VA notify a Veteran of alternative diagnostic codes or potential "daily life" evidence. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding, in part, that VA is required only to send the Veteran a generic notice). Reviewing the May 2009 correspondence in light of the Federal Circuit's decision, the Board finds that the Veteran has received 38 U.S.C.A. § 5103(a)-compliant notice as to his increased rating claim. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). II. Duty to Assist The VCAA also provides that VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Veteran's service treatment records and VA treatment records are on file. There is no indication of available, outstanding records which would support the Veteran's claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran was afforded VA examinations for evaluation of his service connected disabilities in June 2009. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The examination reports are thorough and contain appropriate findings and sufficient detail so that the Board's evaluation is a fully informed one. Thus, the Board finds that further examination is not necessary. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran to notify and assist him have been fulfilled, and the appellant is not prejudiced by a decision on the claim at this time. Increased Rating Laws and Regulations Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The assignment of a particular diagnostic code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which diagnostic code or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Factual Background and Analysis I. PTSD The Veteran contends that his service-connected PTSD is more disabling than currently evaluated. The Veteran's PTSD is currently evaluated as 30 percent disabling under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 30 percent rating is assigned 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 disability rating is warranted if the Veteran experiences 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. A 70 percent disability rating is warranted if the Veteran experiences 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 work like setting); inability to establish and maintain effective relationships. A 100 percent disability rating is warranted for 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 ability 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board recognizes that the Court, in Mauerhan v. Principi, 16 Vet. App. 436 (2002), stated that the symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). See also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995); 38 C.F.R. § 4.130. According to the DSM-IV, a GAF score of 61-70 indicates 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, has some meaningful interpersonal relationships. A GAF score of 51-60 indicates 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). A GAF score of 41-50 indicates 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). A GAF score of 31-40 indicates 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). Historically, service connection was granted for the Veteran's PTSD in a June 2003 rating decision and assigned a 30 percent disability rating, effective October 29, 2002. VA treatment records reflect the Veteran's ongoing complaints of and treatment for his mental disorder. In January 2008, the Veteran denied feeling depressed, but reported that he would get down about his finances. He denied any thoughts of suicide. The Veteran reported that he was not having nightmares about Vietnam as often, but dreams every night and nightmares about crime in his town. The Veteran reported that he thought his medication helped reduce the intensity of his nightmares. The Veteran reported that he wakes up every 2 hours, and, therefore, feels tired during the day. The Veteran reported being easily irritated and that he did not like crowds. The Veteran reported that he kept busy doing woodworking and worked as a carpenter at times. The clinician stated that the Veteran was casually dressed and cooperative. The Veteran's speech was normal. The Veteran's mood was euthymic with a range of affect. The Veteran did not have suicidal or homicidal ideation, or psychosis. The Veteran had good insight/judgment. The clinician assessed the Veteran as having mild symptoms of PTSD reported. The clinician was going to give a trial of medication for the Veteran's sleep. A VA mental health treatment record from February 2009 documents that the Veteran denied feeling depressed, but reported that he got down about his finances, and did not have thoughts of suicide. The Veteran continued to sleep well with medication. He reported that, if he does not take the medication, he is easily startled, cries out in his sleep, and is up every hour or two, checking the house. He reported that the medication reduced the intensity of his nightmares. The Veteran reported being irritable at times, and that he was stressed about his financial situation. The Veteran reported having trouble finding a job. The clinician stated that the Veteran was casually dressed and cooperative. The Veteran's speech was logical and goal directed. The Veteran's mood was euthymic with a range of affect. The Veteran did not have suicidal or homicidal ideation, or psychosis. The Veteran also had good insight/judgment. The clinician assessed the Veteran as having an improvement in symptoms of PTSD with his sleep medication. The Veteran was afforded a VA examination for his PTSD in June 2009. During the examination, the Veteran reported that mild symptoms such as a depressed mood, guilt, and occasional helplessness had lasted for years. The Veteran reported that other mild symptoms such as a temper and irritability had increased in severity for the past 5 to 6 years. The Veteran reported that mild to moderate symptoms such as hallucinations of seeing dead people when falling asleep or awakening had also lasted for years. The Veteran denied any hospitalizations due to any psychiatric disorder. He reported receiving VA treatment for his PTSD, as well as taking medication. The Veteran reported that he retired in 2004 and that his retirement was not due to the effects of his PTSD. The Veteran denied any legal history. The Veteran reported that he had a good relationship with 4 of his siblings, but did not have much contact with the other one. He reported that he was married four times, twice to the same woman (with his first wife being his current wife of 15 years). He reported that his relationship with his wife was good. He reported having 3 sons, and that he had a good relationship with 2 of them and sees them monthly. He reported that his contact with his sister-in-law and her family was of mixed quality. The Veteran reported that his social relationships solely consist of his family. The Veteran reported that woodworking was his leisure pursuit. He denied any history of assaultiveness or suicide attempts. The examiner found that the Veteran had many PTSD symptoms. The Veteran's mild symptoms included: irritability, which was worse during the past 5 to 6 years; avoidance of going outside at night; and recurring recollections of the war, which were happened approximately once per month. The Veteran's mild to moderate symptoms included: a depressed mood, survivor guilt, thinking about deceased service members, and anhedonia for years; visual hallucinations; vigilance when in a new setting or around new people; reactions to stimuli (such as helicopters, overgrown brush, and earthly smells), and would tremor or increase his breathing rate; avoidance of talking about the war; blocking of some memories; and detachment from others. The Veteran's moderate symptoms included being startled at unexpected noises or in the presence of other. The Veteran's moderate to severe symptoms included: a history of sleep problems, with him getting an average of 2 to 7 hours of sleep per night for 20 years; and nightmares, with an average of 3 nightmares per week since he left the military until he recently started some medication. The Veteran also had a sense of life being foreshortened. The examiner found that the Veteran did not have impairment of thought process or communication. The Veteran did not have delusions. The Veteran did not display any inappropriate behavior. The Veteran did not have any suicidal or homicidal thoughts. The Veteran was able to maintain minimal personal hygiene and other basic activities of daily living. The Veteran was oriented to person, place, and time. The Veteran did not have memory loss or impairment. The Veteran did not have any obsessive or ritualistic behavior that interfered with routine activities. The Veteran did not have any irrelevant, illogical, or obscure speech patterns. The Veteran did not have panic attacks. The Veteran had mild to moderate depression and depressed mood. The Veteran had moderate anxiety. The Veteran did not have impaired impulse control. The examiner diagnosed the Veteran with PTSD, and assigned a GAF score of 65. With regard to changes in psychosocial functional status and quality of life following trauma exposure, the examiner stated that the Veteran had decreased social engagement, increased irritability and startle, depression, sleep impairment problems in the past, and felt estranged. With regard to the effect of the disability on the Veteran's occupation and social functioning, the examiner stated that the Veteran had mild effects now that medication had helped with sleep and nightmares. The Veteran's prognosis was good, as he had responded well to medication. The Board has considered the Veteran's contentions carefully. There is no doubt that the Veteran's service-connected PTSD results in impairment. Nevertheless, the Board must apply the regulatory criteria for assigning ratings for PTSD. In this case, competent medical evidence offering detailed medical findings and specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the Veteran's PTSD. The Board has determined that the Veteran is not entitled to more than a 30 percent disability rating under the applicable rating criteria. In this case, the Board notes that the preponderance of the evidence is against a finding of occupational and social impairment with reduced reliability and productivity so to warrant a disability rating of 50 percent. In this regard, the totality of the evidence does not show that the Veteran exhibits the types of symptoms listed as examples for a 50 percent schedular rating. To be assigned a rating of 50 percent, the Veteran must suffer from 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. The Board again recognizes that the Court in Mauerhan stated that the symptoms listed in VA's general rating formula for mental disorders is 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. The Court also indicated in Mauerhan that without those examples, differentiating a 30 percent evaluation from a 50 percent evaluation would be extremely ambiguous. Id. at 442. In light of Mauerhan, the Board observes that, during the June 2009 VA examination, the Veteran reported that he had been married to his current wife for 15 years and that they had a good relationship. In addition, the Veteran reported that he had a good relationship with two of his sons. The Board finds that the Veteran's overall PTSD and depression symptomatology during this period did not cause occupational and social impairment with reduced reliability and productivity. Significantly, the Board notes that the June 2009 VA examination does not show that the Veteran had a 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. Such a finding is supported by and consistent with the GAF score of 65 assigned by the VA examiner. Such a score is indicative of some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships. The Board notes that a GAF score reflects merely an examiner's opinion of functioning levels and in essence represents an examiner's characterization of the level of disability that by regulation is not, alone, determinative of the appropriate disability rating. See Richard v. Brown, 9 Vet. App. 266, 267 (1996). It is noted that a disability rating depends on evaluation of all the evidence, and an examiner's classification of the level of a psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage disability rating to be assigned. 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (1995). The Board finds that the Veteran's GAF score accurately reflected his PTSD symptoms during this period. The Board concludes that the Veteran's impairment during the appeal warranted a 30 percent rating for some social impairment. Generally, the Veteran was functioning pretty well. The Board finds that the demonstrated symptomatology does not show that the Veteran exhibited deficiencies in most areas outlined as samples of the types of symptoms which would warrant a 50 percent rating under Diagnostic Code 9411. In other words, the criteria for a 30 percent rating appear to describe more accurately the Veteran's level of occupational and social impairment due to his PTSD. Under the circumstances, the Board ultimately finds that the Veteran's PTSD symptoms do not result in a disability picture which more nearly approximates the criteria for a rating in excess of 30 percent under Diagnostic Code 9411. In addition, staged ratings are not applicable, since at no point did the Veteran's PTSD even remotely approximate the criteria for a disability rating greater than 30 percent. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran may always file a claim for an increased rating in the future if there is an increase in his PTSD. II. Tinnitus In a July 2010 written communication, the Veteran's representative withdrew the Veteran's appeal for entitlement to an increased rating for tinnitus, currently rated as 10 percent disabling. Specifically, the representative stated that the Veteran understood that his current assigned 10 percent rating for tinnitus was the maximum schedular rating, and that, therefore, he was withdrawing his appeal for this issue. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Further, a substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Accordingly, the issue of entitlement to an increased rating for tinnitus, currently rated as 10 percent disabling, is dismissed. 38 U.S.C.A. § 7105(b), (d); 38 C.F.R. § 20.204. III. Right Posterior Thigh Numbness The Veteran contends that his service-connected right posterior thigh numbness is more disabling than currently evaluated. The Veteran's right posterior thigh numbness is currently evaluated as 10 percent disabling under the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8599-8529. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The Board notes that 10 percent is the highest assignable rating under Diagnostic Code 8529, which is warranted for severe to complete paralysis of the external cutaneous nerve of the thigh. However, higher evaluations are available under Diagnostic Code 8526 for paralysis of the anterior crural nerve (femoral), as evidenced by paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a. Under Diagnostic Code 8526, a 20 percent rating is warranted for moderate incomplete paralysis of the quadriceps extensor muscles; a 30 percent rating is warranted for severe incomplete paralysis of the quadriceps extensor muscles; and a 40 percent rating is warranted for complete paralysis of the quadriceps extensor muscles. A note in the Rating Schedule pertaining to "Diseases of the Peripheral Nerves" provides that the term "incomplete paralysis" indicates a degree of lost or impaired function which is substantially less than that which results from complete paralysis of these nerve groups, whether the loss is due to the varied level of the nerve lesion or to partial nerve regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Historically, service connection was granted for the Veteran's right posterior thigh numbness in an August 1969 rating decision and assigned a 10 percent disability rating, effective June 3, 1969. In June 2009, the Veteran was afforded a VA examination for his right posterior thigh numbness. During the examination, the Veteran reported that he experiences intermittent burning in the back of his right thigh, which is improved by medication. He reported that these flare-up events occur approximately twice per year and that they are moderate in severity and last for several days. The Veteran reported experiencing symptoms of tingling of the skin, burning sensation, and pricking of the skin. Neurologic examination of the Veteran was normal. Examination of the Veteran's right lower extremity motor function was also normal. The examiner found that the Veteran did not have muscle wasting, muscle atrophy, a lesion, any loss of fine motor control, or ulceration. The Veteran's color of his extremity was normal. Examination of the Veteran's right lower extremity sensory function was abnormal. The examiner found that the Veteran had trauma and numbness, as well as decreased sensation in the medial right leg and foot, medial thigh and mid posterior thigh. The Veteran's pinprick test was abnormal. The Veteran had diminished sensation in the medial right leg and foot and medial thigh, as well as near absent sensation in an area in the mid posterior thigh. The Veteran's temperature test, position sense, vibratory sense, and two point discrimination were all normal. The examiner diagnosed the Veteran with peripheral neuropathy right posterior thigh secondary to shell fragment wound, right hip and right thigh. With regard to the effect of the disability on the Veteran's usual occupation and daily activities, the examiner stated that the Veteran may experience mild to moderate impairment in doing moderately strenuous activities. Given the totality of the evidence, the Board believes that the Veteran's disability picture is consistent with the currently assigned 10 percent rating under Code 8529 for severe to complete paralysis of the external cutaneous nerve of the thigh. To the extent that 10 percent is the maximum schedular rating provided for this disability, the Board notes that its consideration of whether referral for evaluation for an extraschedular rating is indicated is discussed later in this decision. See 38 C.F.R. § 3.321. The Board has considered rating the Veteran's right posterior thigh numbness under other Diagnostic Codes in order to provide the Veteran with the most beneficial rating; however, the Board finds that the Veteran's disability is rated most appropriately under Diagnostic Code 8529. In this regard, the Board has considered Diagnostic Code 8526 for difficulty with the quadriceps extensor muscles. However, as shown above, the objective medical evidence does not demonstrate moderate incomplete paralysis of the quadriceps extensor muscles, which warrants a 20 percent rating under Diagnostic Code 8526. In sum, the Board finds that the preponderance of the evidence is against finding that the Veteran is entitled to a disability rating greater than 10 percent for right posterior thigh numbness. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a disability rating greater than 10 percent. In addition, staged ratings are not applicable, since at no point did the Veteran's disability approximate the criteria for a disability rating greater than 10 percent. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran may always file a claim for an increased rating in the future if there is an increase in his right posterior thigh numbness. IV. Bilateral Hearing Loss The Veteran contends that his service-connected bilateral hearing loss is more disabling than currently evaluated. The Veteran's bilateral hearing loss is currently evaluated as 0 percent disabling under the provisions of 38 C.F.R. § 4.85, Diagnostic Code 6100. Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. An examination for hearing impairment for VA purposes must be conducted by a State-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Further, disability 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, 349 (1992). Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect. 38 C.F.R. § 4.85(b). The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Table VII, (Percentage Evaluations for Hearing Impairment) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). VA regulations also provide that in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 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. Historically, service connection was granted for the Veteran's bilateral hearing loss in an August 1969 rating decision and assigned a noncompensable disability rating, effective June 3, 1969. The Veteran was afforded a VA examination in June 2009. During this examination, the Veteran's main complaint was constant ringing in his ears and having a hard time hearing certain sounds/voices. The Veteran reported that the ringing in his ears was worse at night, when thing were very quiet, and that his hearing was the same all of the time. The Veteran's word recognition scores using the Maryland CNC Test were 92 percent for the right ear and 84 percent for the left ear. The audiological assessment showed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 20 20 30 60 33 LEFT 15 30 60 65 43 The examiner diagnosed the Veteran with moderately severe bilateral sensorineural hearing loss. With regard to the effect of the hearing loss on the Veteran's usual occupation and daily activities, the examiner stated that the Veteran may experience difficulty understanding conversational speech in noisy settings, and that his concentration may be impaired due to constant tinnitus. During this examination, neither of the Veteran's ears met the criteria for exceptional hearing loss as defined by 38 C.F.R. § 4.86. Application of Table VI from 38 C.F.R. § 4.85 to the audiologic measurements established entitlement to a noncompensable percent rating from Table VII of 38 C.F.R. § 4.85 by intersecting vertical column I with horizontal row II. The Board acknowledges the Veteran's strong belief that his hearing loss should be considered compensable. However, application of pertinent regulations, as explained above, do not permit a compensable rating at this time. The Board is bound by VA's regulations. In addition, staged ratings are not applicable, since at no point did the Veteran's disability approximate the criteria for a disability rating greater than 0 percent. See Hart v. Mansfield, 21 Vet. App. 505 (2007). To any extent the Veteran contends that his hearing loss impacts his activities of daily living, the Board notes that 38 C.F.R. § 4.86(b) appears to be designed to remedy such a problem. This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise and appears to acknowledge that a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment. See 64 Fed. Reg. 25203 (May 11, 1999). The Veteran's audiometric test results have not met the criteria set forth in 38 C.F.R. § 4.86(b); therefore, the Board has not applied this provision. In sum, applying the criteria found in 38 C.F.R. §§ 4.85 and 4.86 at Tables VI and VIA yields a numerical designation of I for the right ear and II for the left ear, which establishes entitlement to noncompensable rating. Therefore, the Board finds that the preponderance of the evidence is against finding that the Veteran is entitled to a disability rating greater than 0 percent for bilateral hearing loss. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a compensable disability rating. The Veteran may always file a claim for an increased rating in the future if there is an increase in his hearing loss disability. Extraschedular Consideration The Board also notes that, in general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the medical evidence and the symptoms described by the Veteran fit within the criteria found in the diagnostic codes applicable to each disability at issue. In short, the rating criteria contemplate not only the Veteran's symptoms but the severity of his disabilities, and each provides higher disability evaluations for greater levels of symptomatology and impairment, not found here. For these reasons, referral for extraschedular consideration is not warranted. (CONT. NEXT PAGE) ORDER Entitlement to a disability rating greater than 30 percent for PTSD is denied. The appeal for a disability rating greater than 10 percent for tinnitus is dismissed. Entitlement to a disability rating greater than 10 percent for right posterior thigh numbness is denied. Entitlement to a compensable disability rating for bilateral hearing loss is denied. ____________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs