Citation Nr: 1300258	
Decision Date: 01/04/13    Archive Date: 01/11/13

DOCKET NO.  07-23 962	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD), prior to November 5, 2009, and in excess of 70 percent thereafter.

2.  Entitlement to an initial disability rating in excess of 30 percent for pseudofolliculitis barbae.

3.  Entitlement to an initial disability rating in excess of 10 percent for bilateral plantar fasciitis.

4.  Entitlement to a disability rating in excess of 10 percent for a lumbar spine disability.

5.  Entitlement to a compensable disability rating for a left ear hearing loss disability.

6.  Entitlement to service connection for tinnitus.

7.  Entitlement to service connection for residuals of an eye injury.

8.  Entitlement to service connection for sleep apnea.

9.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

S. Layton, Counsel


INTRODUCTION

The Veteran had active military service from October 2000 to October 2004 with subsequent service in the reserves. 

This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions from the Department of Veteran's Affairs (VA) regional office (RO) located in St. Louis, Missouri

In an April 2006 decision, the RO denied service connection for a low back disorder, a left shoulder disorder, a skin disorder, a bilateral hearing loss disorder, tinnitus, PTSD, a scar on the forehead, and for headaches.  The Veteran submitted a timely notice of disagreement (NOD) regarding all of the denied claims.  In a September 2006 decision, the RO granted service connection for pseudofolliculitis barbae and assigned an initial noncompensable evaluation, effective October 11, 2004, the date following the Veteran's separation from military service.  This decision also granted service connection for PTSD with an initial 10 percent evaluation, effective October 11, 2004.  Service connection for a scar on the forehead, headaches, a low back disorder, a left shoulder disorder, a bilateral hearing loss disorder, and for tinnitus remained denied.  The Veteran submitted a timely NOD regarding a higher rating for PTSD, and for service connection for the scar, headaches, low back disorder, left shoulder disorder, bilateral hearing loss disorder, and tinnitus.  

In a June 2007 decision, service connection for lumbar strain was granted with an initial evaluation of 10 percent, effective October 11, 2004.  This decision also granted service connection for a left shoulder strain with an initial noncompensable evaluation, effective October 11, 2004.  Service connection for a left ear hearing loss disability was granted with a noncompensable evaluation, effective October 11, 2004.  Subsequently, a statement of the case was issued.  On a VA form 9 submitted in July 2007, the Veteran specified that he was only appealing the issues of entitlement to a higher initial rating for PTSD and for service connection for tinnitus.  As such, the issues of entitlement to higher initial ratings for lumbar strain, left shoulder strain, and left ear hearing loss disability were no longer on appeal.  Additionally, the issues of entitlement to service connection for a scar on the forehead, headaches, and a right ear hearing loss disability were no longer on appeal.

In August 2007, the Veteran submitted a timely NOD with respect to the September 2006 decision that granted a noncompensable initial evaluation for pseudofolliculitis barbae.  Subsequently, in a July 2008 rating decision, the RO increased the evaluation assigned to this disability to 30 percent, effective October 11, 2004.  A statement of the case was issued, and in November 2008, the Veteran submitted a VA form 9 perfecting an appeal regarding this issue.  

In November 2009, the Veteran instituted new claims for increased disability ratings for his service connected left ear hearing loss and left shoulder disabilities.  He additionally requested that his previously denied claim for service connection for a right ear hearing loss be reopened, and he initiated new claims for service connection for a bilateral foot disorder and a bilateral eye disorder.  

In a June 2010 decision, the RO increased the evaluation for the Veteran's left shoulder disability to 20 percent, effective November 23, 2009.  This decision also granted service connection for bilateral plantar fasciitis and established an initial disability rating of 10 percent, effective November 23, 2009.  No increase was granted for the service connected lumbar strain and left ear hearing loss disabilities, and service connection for a bilateral eye disorder was denied.  The Veteran submitted a timely NOD regarding the issues of increased ratings for bilateral plantar fasciitis, lumbar spine, and left ear hearing loss disabilities, and service connection for a bilateral eye disorder.  No NOD was filed regarding the issue of a higher disability rating for a left shoulder disability.  As such, no appeal was initiated regarding the issue of a higher disability rating for a left shoulder disability.  Statements of the case were issued regarding the other issues, and on a VA form 9 submitted in February 2012, the Veteran specified that he was only appealing the issues of entitlement to higher ratings for bilateral plantar fasciitis and lumbar strain, and service connection for a bilateral eye disorder.  On another VA form 9 submitted in March 2012, the Veteran specified that he was also continuing his appeal regarding an increased rating for his service connected left ear hearing loss disability.

In April 2010, the Veteran initiated a new claim for service connection for sleep apnea.  In a September 2010 RO decision, service connection for sleep apnea was denied.  The Veteran filed a timely NOD, and a statement of the case was issued.  In August 2012, the Veteran filed a VA form 9 regarding the issue of entitlement to service connection for sleep apnea.

In a February 2012 decision, the RO granted a 70 percent evaluation for service connected PTSD, effective November 5, 2009.

Since the RO did not assign the maximum disability rating possible for any of the disability ratings on appeal, the appeal for higher evaluations remain before the Board.  AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).

The issues of entitlement to service connection for a traumatic brain injury and of whether new and material evidence has been submitted to reopen a previously denied claim for service connection for a right ear hearing loss disability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

The issue of entitlement to a TDIU 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.  For the period prior to November 5, 2009, the Veteran's service-connected PTSD was manifested by symptoms of intrusive thoughts, chronic sleep impairment, and nightmares; the weight of the evidence is against a finding of occupational and social impairment with reduced reliability and productivity during this period.  

2.  Beginning on November 5, 2009, the Veteran's service-connected PTSD was manifested by symptoms of anxiety, suspiciousness, chronic sleep impairment, nightmares, depressed affect, impairment of memory, angry outbursts and irritability with unprovoked periods of violence; the weight of the evidence is against a finding of total occupational and social impairment during this period.

3.  The preponderance of the evidence shows that the Veteran's service-connected pseudofolliculitis barbae affects 20 to 40 percent of the entire body or exposed areas, and has not been treated with intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more during a 12-month period.

4.  The Veteran's service-connected bilateral plantar fasciitis is not shown to have been productive of symptomatology of a unilateral or bilateral severe disability, with objective evidence of marked deformity, pain on manipulation and use, indication of swelling on use, or characteristic callosities.

5.  The Veteran's lumbar spine disability is manifest by objective observation of forward flexion greater than 60 degrees with consideration of functional loss due to pain, weakness and other factors; and without objective evidence of ankylosis or incapacitating episodes.

6.  During the course of the appeal, reliable acoustical testing has not shown Level X or Level XI hearing acuity in the left ear.

7.  The Veteran's tinnitus was not manifest in service and is unrelated to service.

8.  A bilateral eye disability was not manifest in service and is unrelated to service.

9.  Sleep apnea was not manifest in service and is unrelated to service.


CONCLUSIONS OF LAW

1.  For the period prior to November 5, 2009, the criteria for an initial evaluation in excess of 10 percent disabling for PTSD have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code 9411 (2012).

2.  For the period beginning on November 5, 2009, the criteria for an initial evaluation in excess of 70 percent disabling for PTSD have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code 9411 (2012).

3.  The criteria for a compensable disability rating for the Veteran's service-connected folliculitis have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.118, Diagnostic Code 7806 (2012).

4.  The criteria for an evaluation in excess of 10 percent disabling for plantar fasciitis have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.71a, Diagnostic Code 5276 (2012).

5.  The criteria for an evaluation in excess of 10 percent disabling for lumbar strain have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for revised DCs 5235-5243 (as in effect since September 26, 2003)) (2012).

6.  The criteria for a compensable disability evaluation for left ear hearing loss have not been met.  38 U.S.C.A. § 1155, 5107, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.85, Diagnostic Code 6100 (2012).

7.  Tinnitus was not incurred in or aggravated during service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).

8.  A bilateral eye disability was not incurred in or aggravated during service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).

9.  Sleep apnea was not incurred in or aggravated during service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

With regard to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012).

Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim."  38 U.S.C.A. § 5103(a)(1) (West Supp. 2012).  As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant."  38 U.S.C.A. § 5103(a)(1) (West Supp. 2012).  

VCAA letters dated in May 2005, November 2009, January 2010, and May 2010 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187.  The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims.  These letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121.  Additionally, the November 2009, January 2010, and May 2010 letters advised him as to the disability rating and effective date elements of his claims.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Furthermore, for initial rating claims or claims for an earlier effective date, where service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled.  Once a claim for service connection has been substantiated, the filing of a notice of disagreement (NOD) with the rating or the effective date of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice.  See Dingess v. Nicholson, 19 Vet. App. 473, 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

The Board also concludes that VA's duty to assist has been satisfied.  All of the Veteran's VA and private treatment records have been associated with the claims file.  The Veteran has at no time referenced any outstanding records that he wanted VA to obtain.

With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  See 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.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2011).

The RO provided the Veteran with VA examinations with regard to his service-connected PTSD, pseudofolliculitis barbae, lumbar spine, plantar fasciitis, and left ear hearing loss disabilities with the most recent examinations conducted in January 2012.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  There is no objective evidence indicating that there has been a material change in the severity of these service-connected disabilities since he was last examined.  See 38 C.F.R. § 3.327(a) (2011).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted.  See VAOPGCPREC 11-95.  The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  The information obtained during these examinations combined with the remainder of the evidentiary record is sufficient to rate the Veteran's disabilities under the appropriate diagnostic criteria.  The Board therefore concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal.  See 38 C.F.R. § 4.2 (2011); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Veteran and his representative have not contended otherwise.

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).

I.  Increased Rating Claims

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports a claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding the degree of disability will be resolved in favor of a veteran.  38 C.F.R. § 4.3 (2012).

A veteran's entire history is reviewed when making a disability determination.  38 C.F.R. § 4.1 (2012).  When a veteran timely appeals an initial rating for a service-connected disability within one year of the rating decision, VA must consider whether the veteran is entitled to "staged" ratings to compensate him for periods of time since the filing of his claim when his disability may have been more severe than others.  Fenderson v. West, 12 Vet. App. 119 (1999).

A.  PTSD

The regulations establish a general rating formula for mental disabilities.  38 C.F.R. § 4.130 (2012).  Ratings are assigned according to the manifestation of particular symptoms.  Notably, the term "such as" in 38 C.F.R. § 4.130 precedes lists of symptoms that are not exhaustive, but rather serve as examples of the type and degree of symptoms and their effects that would justify a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Accordingly, the evidence considered in determining the level of impairment under 38 C.F. R. § 4.130 is not restricted to the symptoms provided in the diagnostic code.  Instead, VA must consider all symptoms of a claimant's disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV).

PTSD is evaluated under Diagnostic Code 9411.  

The criteria for a 10 percent rating are as follows:

Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.

The criteria for a 30 percent rating are as follows:

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, and mild memory loss (such as forgetting names, directions, recent events).

The criteria for a 50 percent rating are as follows:

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 criteria for a 70 percent rating are as follows:

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

38 C.F.R. § 4.130, Diagnostic Code 9411 (2012).

Within the DSM-IV, Global Assessment Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996).  A GAF score is, of course, just one part of the medical evidence to be considered and is not dispositive.  The same is true of any physician's statement as to the severity of a disability.  It remains the Board's responsibility to evaluate the probative value of any doctor's opinion in light of all the evidence of record.

GAF scores from 51 to 60 represent moderate symptoms, such as flat affect and circumstantial speech, and occasional panic attacks, or moderate difficulty in social, occupational, or school function (such as few friends, conflicts with peers or coworkers).  GAF 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).  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).  A score from 21 to 30 is indicative of behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas.  A score of 11 to 20 denotes some danger of hurting oneself or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasional failure to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e.g., largely incoherent or mute).  A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death.  38 C.F.R. § 4.130 (incorporating by reference VA's adoption of the DSM-IV for rating purposes).

The Veteran's PTSD is currently assigned a disability rating of 10 percent under Diagnostic Code 9411 for the period prior to November 5, 2009, and a rating of 70 percent thereafter.  The Veteran seeks higher initial ratings.

On VA compensation and pension examination in July 2006, the Veteran reported experiencing intrusive memories and nightmares about Iraq.  He related that he would get into shouting matches with others.  The examiner noted that the Veteran denied a depressed mood.  The Veteran reported that he was jumpy and nervous in reaction to triggers.  The Veteran would avoid people and was fatigued.  It was noted that the Veteran had been working for over a year for a probation and parole office as a corrections officer.  The Veteran stated that he tried to isolate himself from his coworkers.  He had previously been married for a four-year period.  He had custody of his two daughters and reported having a good relationship with them.  The Veteran stated that he had some friends, but no close friends.

The examiner found the Veteran to be alert, oriented, and cooperative.  His speech was deemed to be normal and clear.  The examiner reported that the Veteran's thought process was goal directed and without hallucinations or suicidal or homicidal ideation.  No inappropriate behavior, memory impairment, obsessive behavior, or history of panic attacks was noted.  The examiner observed that the Veteran was able to maintain his personal hygiene and activities of daily living.  The Veteran had an anxious mood upon exposure to triggers or certain situations.  The examiner indicated that the Veteran had some sleep impairment.  The examiner assigned a GAF score of 60.

A VA outpatient record from November 2006 reflects that the Veteran experienced jumpiness and sleep disturbances.  The Veteran reported that he could not stop thinking about Iraq.  He had previously been prescribed Buspar for anxiety.  He reported experiencing nightmares once a week, although he would awaken more often in a cold sweat.  No flashbacks were reported, although the Veteran experienced intrusive thoughts.  The Veteran reported isolating himself from people and becoming startled easily.  The treatment provider found the Veteran to be alert, oriented, and had good grooming.  The Veteran's speech was clear and fluent.  The examiner noted that the Veteran demonstrated a good fount of knowledge.  The Veteran's thoughts appeared to flow in a linear fashion.  Although the Veteran was short tempered, his affect was deemed generally euthymic.  No hallucinations, suicidal ideations, or homicidal ideations were present.  The examiner described the Veteran's PTSD as chronic and mild.

On VA outpatient treatment in March 2007, the Veteran reported that he was doing well.  The Veteran reported that he was sleeping well, although his girlfriend reported that he would thrash in his sleep.  He was enrolled in barber school, and he was employed.  The Veteran described his mood as good and not depressed.

After a thorough review of the evidence, the Board finds that the impact of the Veteran's PTSD on his social and industrial functioning is most congruent with the currently-assigned 10 percent evaluation prior to November 5, 2009.  The criteria for the assignment of a 30 percent rating have arguably not been met or approximated.  The evidence does not demonstrate that the Veteran has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks to warrant a 30 percent rating under Diagnostic Code 9411.  

During this period, the Veteran clearly showed symptoms of anxiety and sleep impairment.  However, the Veteran himself reported to VA treatment providers during this period that he was not depressed.  Additionally, the records for this period are devoid of evidence of suspiciousness, panic attacks, or memory loss of any kind.  Significantly, although the Veteran was divorced, he maintained a relationship with his two children that was described as "good," and he maintained employment and was pursuing additional education.  Significantly, the Veteran's PTSD symptomatology was described by a VA examiner in November 2006 as "mild."  The Board finds a 10 percent rating to be consistent with mild symptomatology.

Based on the foregoing, the Board concludes that the overall level of impairment from PTSD during the period prior to November 5, 2009, is most consistent with the criteria contemplated by a 10 percent disability rating under Diagnostic Code 9411.  In rendering this decision, the Board has taken into account the fact that the Veteran's GAF score was estimated to be 60 by the July 2006 VA examiner.  According to the GAF scale, and scores ranging from 51 to 60 reflect moderate difficulty in social and occupational functioning.  While the Board acknowledges this score, at the same time, the examiner made the narrative findings described above.  The Board ultimately places more probative value on the narrative findings of the examiner regarding the Veteran's symptomatology because they are by far more descriptive than the mere numerical score.

On VA compensation and pension examination in November 2009, the Veteran reported having no psychiatric hospitalizations since his prior examination.  He additionally reported discontinuing his psychiatric medication several months previously due to expense and side effects.  He reported ongoing sleep problems and depression.  The Veteran reported being put on administrative leave and then terminated from his prior employment after assaulting an officer.  The Veteran related that he had a history of calling in sick due to difficulty dealing with stress.  It was noted that the Veteran had difficulty managing angry impulses.  He reported an inability to sustain romantic relationships because of his aggressiveness and emotional detachment.  He had to return his two children to their mother due to an inability to properly care for them.  He stated that he had no close friends and was suspicious of others.  He reported experiencing daily suicidal ideation without specific plan or intent.

The examiner remarked that the Veteran was alert, oriented, and cooperative.  His speech was normal and clear.  No hallucinations were reported.  The Veteran presented a blunted affect.  The examiner indicated that the Veteran would respond in a logical manner and did not display inappropriate behavior.  It was noted that the Veteran would generally shower every day to every other day, although he would wear the same clothes for days at a time.  The Veteran reported thoughts of hurting others, including his sister.  Short term memory impairment was noted, as the Veteran had problems remembering appointments, names, and dates.  No obsessive or ritualistic behavior was observed.  The Veteran reported occasional panic attacks and daily depression.  He general would get no more than two hours of sleep per night, as he was bothered by multiple nighttime awakenings.  The examiner opined that the Veterans symptoms had increased since his prior examination, and a GAF score of 50 was assigned.

VA treatment records indicate that the Veteran was treated on an outpatient basis for PTSD from 2009 through 2012.

On VA compensation and pension examination in November 2010, the Veteran reported no prior psychiatric hospitalizations.  It was noted that the Veteran had been employed but stopped work in February 2010 due to medical conditions and his inability to deal with stress.  He went back to work that summer, but after a few months, he was sent home from work due to his appearance and inability to deal with stress.  He said that he had no friends and pursued no leisure activities.  It was noted that the Veteran had verbal confrontations with strangers and had previously assaulted a stranger in a grocery store parking lot.  The Veteran reported experiencing suicidal thoughts without a plan or intent.

The examiner found the Veteran to be alert and oriented.  The Veteran's affect was deemed constricted, and he displayed an anxious mood.  The Veteran's speech was normal and clear.  Ho hallucinations were reported, and the examiner found the Veteran to respond in a logical manner.  No inappropriate behavior was observed.  Some memory impairment was noted, but no obsessive or ritualistic behavior was present.  Panic attacks were experienced every day.  The Veteran said he was depressed and anxious on a daily basis.  He had problems with impulse control.  He reported difficulty falling and staying asleep.  The examiner assigned a GAF score of 46.

On VA compensation and pension examination in January 2012, the examiner opined that the statement that best summarized the Veteran's level of occupational and social impairment was, "occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood."  The Veteran was noted to be quite social isolated.  The examiner wrote that the Veteran worked as a corrections officer, but he had taken up to six months of leave time over the prior year due to his PTSD symptoms.  It was noted that the Veteran had just graduated school that month with an Associates of Arts degree in criminal justice.  The Veteran reported that he was regularly involved in verbal and physical confrontations with others.  The examiner noted that the Veteran experienced a depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, a flattened affect, impaired judgment, and impaired abstract thinking.  Additionally, the examiner wrote that the Veteran had disturbances of motivation and mood, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals, and impaired impulse control.  The examiner opined that the Veteran would neglect his personal appearance and hygiene.  The examiner did not assign a GAF score.

A January 2012 letter from T.D., M.D., reflects that the Veteran was being treated for PTSD.  Dr. D. requested that the Veteran be excused from work due to his PTSD symptoms.  Dr. D. stated that he would be reevaluating the Veteran in mid-February to determine if he was able to return to work at that time.  Dr. D. remarked that PTSD was a waxing and waning condition in which there might be periods of time that the Veteran may need to miss work secondary to an exacerbation of his symptoms.

While the evidence of record shows that the Veteran experienced an increase in symptomatology for the period from November 5, 2009, the Board finds that the overall level of impairment has not met the criteria for a disability rating in excess of 70 percent.  While the Veteran has shown outbursts of anger and violence as demonstrated by his history of altercations, he has not been shown to have a specific plan to harm himself or others.  His memory loss has been limited to impairment in short term memory; there is no evidence that his memory loss is so severe that he has forgotten his own name or occupation.  All of the VA examiners for this period have found the Veteran to be oriented.

The Veteran's symptoms of suicidal ideation without a plan, obsessional rituals, depression and daily panic, impaired impulse control with periods of violence, neglect of personal appearance, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships all fall squarely within the criteria for a 70 percent, and no higher, disability rating.  Significantly, the January 2012 VA examiner did not opine that the Veteran experienced total occupational and social impairment; the examiner indicated that the statement that best summarized the Veteran's level of occupational and social impairment was, "occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood."  The Board finds that statement from the January 2012 VA examiner to be very probative, as the January 2012 VA examiner offered the opinion after reviewing the claims file, conducting an interview of the Veteran, and performing an extensive psychiatric examination of the Veteran.

The Board recognizes that the Veteran's PTSD symptoms have led to difficulties with the Veteran's employment.  The assignment of a 70 percent disability rating acknowledges difficulty and interference with employment.  Further occupational difficulties will be considered in the consideration of a TDIU, discussed below.

In rendering this decision, the Board has taken into account the fact that the Veteran's GAF score was estimated to be between 50 and 46 by the November 2009 and November 2010 VA examiners.  According to the GAF scale, and scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting).  Serious symptoms are contemplated by the currently assigned 70 percent disability rating; thus, the given GAF scores support the assignment of a 70 percent, and no higher, disability rating.

B.  Pseudofolliculitis Barbae

The assignment of a particular diagnostic code is "completely 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 diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by a VA adjudicator must be specifically explained.  Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). 

The Veteran's skin disability is currently rated under 38 C.F.R. § 4.118, Diagnostic Code 7806 [dermatitis or eczema] (2012).  Diagnostic Code 7806 is deemed by the Board to be the most appropriate code, primarily because it pertains specifically to the disability at issue [pseudofolliculitis barbae], but also because it provides specific guidance as to how symptoms of this disability are to be evaluated. 

The Board can identify nothing in the evidence to suggest that a diagnostic code other than 7806 would be more appropriate, and the Veteran has not requested that another diagnostic code should be used.  Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 7806. 

The applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118 were amended effective August 30, 2002 and again in October 2008.  The October 2008 revisions are applicable to application for benefits received by the VA on or after October 23, 2008.  See 73 Fed. Reg. 54708 (September 23, 2008).  In this case, the Veteran filed his claim in April 2005.  Therefore, only the 2002 changes to 38 C.F.R. § 4.118  are applicable. 

Diagnostic Code 7806 provides for the following levels of disability: 

A noncompensable rating is appropriate where less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and; no more than topical therapy is required during the past 12-month period. 

A 10 percent rating is warranted when at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas are affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than 6 weeks during the past 12-month period. 

A 30 percent disability rating is appropriate where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12 month period. 

A 60 percent disability rating is appropriate where more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period. 

See 38 C.F.R. § 4.118, Diagnostic Code 7806, as amended by 67 Fed. Reg. 49596 (July 31, 2002). 

The Veteran's pseudofolliculitis barbae is currently assigned a disability rating of 10 percent.  The Veteran seeks a higher initial rating.

A VA treatment record from June 2005 reflects that the Veteran had a rash on his back.  A September 2006 VA dermatology record reflects that the Veteran had been started on Clindamycin lotion, doxycycline, and Retin-A.  The Veteran had also previously had Kenalog injections.  The examiner observed hyperpigmented macules on the Veteran's back, papules and pustules, and keloids on the Veteran's back and chest.

On VA examination in July 2006, it was noted that the Veteran used Clindamycin lotion twice a day, doxycycline twice a day, and Retin-A once per day.  The examiner additionally noted that the Veteran had a Kenalog injection in the largest of the keloids.  No intensive light therapy, UVBs, PVAs, or electron beam therapies had been administered.  The Veteran reported itching, irritation, pain, pustules, and keloids.  No malignant neoplasms were noted.  The examiner mound multiple pustules that involved the Veteran's entire face, scalp, neck, upper back and shoulders, upper arms, and chest.  The examiner stated that the total area covered was 22 percent of the Veteran's entire body.  The examiner noted that the exposed area covered was one percent of the total body, and that involved the face, scalp, and back of the head and neck.  The hands and forearms were not involved.  The examiner found a 2 cm keloid, a 3 cm keloid, and a 1 cm keloid on the Veteran's back.  Three 1 cm keloids and a 2 cm keloid were on the Veteran's chest.

VA dermatology records from 2007 through 2009 reflect continued treatment for pustules and keloids.

On VA compensation and pension examination in November 2009, the Veteran reported tender and painful pustules.  The examiner noted that the Veteran used Benzyl Peroxide and doxycycline, neither of which was a corticosteroid or an immunosuppressive.  The examiner further noted that keloids had been injected on three prior visits in 2007.  The examiner opined that the total body area affected was between 20 and 40 percent, and the total exposed body areas affected was greater than 5 but less than 20 percent.

On VA compensation and pension examination in April 2010, the Veteran reported that his skin condition flared with weekly shaving.  The Veteran had previously been treated with doxycycline, benzyl peroxide, and Retin-A.  He had also previously had Kenalog injections.  The examiner remarked that 30 percent of the Veteran's exposed areas were affected, and 40 percent of the entire body was affected.  Color photographs were submitted.

On VA examination in January 2012, the Veteran reported that he no longer shaved as shaving caused his skin condition to flare.  The examiner opined that the Veteran did not have any systemic manifestations such as fever, weight loss, or hypoproteinemia due to his skin disease.  No immunosuppressive medications or systemic corticosteroids had been prescribed.  The examiner noted that the Veteran had been prescribed a topical corticosteroid; namely, Retin-A.  No intensive light therapy, electron beam therapy, or UVB treatment had been prescribed.  The examiner opined that 20 to 40 percent of the Veteran's total body area was affected.  The examiner opined that as the Veteran had a beard, facial pictures of pseudofolliculitis barbae were not apparent, but most of the Veteran's back and neck were filled with acne and keloids.  The examiner specified that the skin disorder affected less than 40 percent of the Veteran's face and neck.  The Veteran reported that the Veteran would get into trouble at work for not shaving; however, the examiner opined that the Veteran's skin condition did not impact his ability to work.

Based on the evidence of record, the Board finds that a disability rating in excess of 30 percent for the Veteran's pseudofolliculitis barbae is not warranted.  As noted above, a rating in excess of 30 percent requires more than 40 percent of the entire body or more than 40 percent of exposed areas be affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs to be required for a total duration of less than six weeks during the past 12-month period.  The evidence during the period on appeal does not rise to this level.  In particular, the evidence does not show that the Veteran was prescribed systemic therapy.  Although the Veteran had been prescribed Retin-A, the January 2012 VA examiner indicated that Retin-A was a topical corticosteroid, not a systemic corticosteroid.  In fact, the January 2012 VA examiner specified that the Veteran was not being treated with a systemic corticosteroid, as required for an increased disability rating.  Moreover, the clinical evidence does not show that the Veteran's service-connected pseudofolliculitis barbae affected at least 40 percent of his exposed or entire body.  On the contrary, all of the VA examination report reflects that the affected area of the exposed or entire body was less than 40 percent.

The Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating for his folliculitis.  However, while competent to report on his symptomatology such as reporting that he experiences rashes or itching, he is not competent to provide medical opinions such as quantifying the percentage of his body affected by his service-connected skin disorder.  The Board places greater probative value on the physical examination findings completed during the current appeal which have provided sufficient objective findings with which to rate adequately the service-connected skin disorder.  In this regard, the Board notes that the physical examination reports were prepared by trained, objective medical professionals impartially recording their observations. 

Based on the foregoing, the Board concludes that the preponderance of the evidence does not establish that the Veteran's folliculitis affects at least 40 percent of his entire body or exposed body.  Furthermore, the evidence does not show that the Veteran requires the use of intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs; therefore, a 30 rating is appropriate.  The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating.  At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 

In this case, the competent and probative evidence of record appears to support the proposition that the Veteran's service-connected folliculitis has not changed appreciably during the period on appeal.  There are no medical findings and no other evidence which would allow for the assignment of a disability rating in excess of 30 percent during the period of time here under consideration.  Specifically, as discussed above, the competent and probative evidence of record, to include the VA examination reports, indicate that the Veteran's symptomatology has remained relatively stable throughout the period.  As such, there is no basis for awarding a staged rating. 

C.  Bilateral Plantar Fasciitis

The Veteran's service-connected bilateral plantar fasciitis is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.71a  Diagnostic Code 5099-5020 [unlisted disorder of the foot, synovitis].  Plantar fasciitis is not specifically addressed by the Rating Schedule.  As such, 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.  See 38 C.F.R. § 4.27 (2012).  When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  See 38 C.F.R. § 4.20 (2012).  According to the policy in the schedule, when a disability is not specifically listed, the Diagnostic Code will be "built up," meaning that the first 2 digits will be selected from that part of the schedule most closely identifying the part of the body involved, and the last 2 digits will be "99".

As noted above, the assignment of a particular diagnostic code is "completely 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 diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by a VA adjudicator must be specifically explained.  Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). 

In this case, the Board finds that Diagnostic Code 5276 [flatfoot, acquired], more appropriately accounts for the Veteran's bilateral foot symptoms.  As will be discussed further below, the January 2012 VA examiner provided a diagnosis of pes planus, which relates to Diagnostic Code 5276.  As the evidence of record is devoid of evidence of arthritis, limitation of motion, or synovitis, Diagnostic Code 5020 [synovitis] does not reflect the totality of the Veteran's bilateral foot symptoms.

Diagnostic Code 5276 provides for a noncompensable evaluation for mild symptoms relieved by built-up shoes or arch supports.  A 10 percent evaluation is assigned for a moderate disability, weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral.  A 30 percent evaluation is assigned for a severe bilateral disability, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities.  A 50 percent evaluation is assigned for a pronounced, bilateral disability, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. See 38 C.F.R. § 4.71a , Diagnostic Code 5276 (2012). 

The Board also notes that the use of the conjunctive "and" in the regulation means that in order to establish entitlement to a rating at that level, all of the stated requirements would have to be met or more nearly approximated than the respective criteria for the lower rating.  See Malone v. Gober, 10 Vet. App. 539, 541 (1997).

The Board observes that the words "moderate", "moderately severe", "marked", "pronounced" and "severe" 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."  See 38 C.F.R. § 4.6 (2012).  The Board observes in passing that "moderate" is generally defined as "of average or medium quality, amount, scope, range, etc."  See Webster's New World Dictionary 871 (1988).  "Severe" is generally defined as "of a great degree: serious."  Id., 1078.  "Marked" is defined as "noticeable; obvious; appreciable; distinct; conspicuous."  Id. at 828.

On VA fee-basis compensation and pension examination in March 2010, the Veteran complained of pain, weakness, and lack of endurance.  He remarked that he used shoe inserts and corrective shoes.  The examiner observed that the Veteran walked with a normal gait, and there were no signs of abnormal weight bearing.  No skin changes, vascular changes, hammertoes, high arches, or clawfoot was observed.  The examiner found no flatfoot or hallux valgus.  The Veteran reported that his pain prevented him from running, jumping, and playing in sports.  The examiner opined that there was no pathology to render a diagnosis.

On VA compensation and pension examination the following month in April 2010, the Veteran complained of constant pain, stiffness, swelling, and lack of endurance.  He remarked that he had difficulty standing on his feet for longer than 20 minutes, had he had difficulty walking further than one block.  He said that he had been given inserts for his shoes bilaterally.  He stated that he had flares that caused increased pain and decreased motion.  The flares were caused by prolonged walking and standing.  He remarked that he had missed work due to pain.  The examiner observed that the Veteran had a slight arch.  Tenderness was noted on palpation of the heels and arches bilaterally.  The examiner remarked that the Veteran's gait was normal, and there was no unusual shoe wear or abnormal weight bearing noted.  No calluses or skin breakdown was found on the bilateral feet.  The examiner indicated that there was no limitation of motion of the Veteran's feet bilaterally.  No weakness was found, although tenderness was present.  No malalignment problems were observed.  The examiner found normal alignment of the Achilles tendon bilaterally.  No other abnormality of the bilateral feet was found.  An X-ray of the bilateral feet yielded normal results.  The examiner gave a diagnosis of plantar fasciitis, bilateral.

On VA compensation and pension examination in January 2012, the Veteran reported that he experienced continual foot pain.  The examiner opined that the Veteran's pain threshold was questionable, as the Veteran grimaced with pain everywhere he was touched.  The examiner noted that the Veteran denied the common signs and symptoms of plantar fasciitis.  The examiner indicated that the Veteran appeared to have flat feet.  The examiner further found that the Veteran had pain on the use and manipulation of the feet.  No characteristic calluses or swelling was found.  The examiner wrote that the Veteran's symptoms were relieved by arch supports.  Extreme tenderness of the plantar surface of the feet was noted; the examiner indicated that the tenderness improved by use of orthopedic shoes.  The Veteran had decreased arch height on weight-bearing.  The examiner indicated that there was no objective evidence of marked deformity, pronation, deformity, or inward bowing or displacement of either Achilles tendon.  The examiner found no evidence of degenerative or traumatic arthritis.  The examiner concluded that the Veteran's bilateral foot disorder did not impact his ability to work.

After having carefully considered the matter, the Board finds that the competent and probative evidence of record demonstrates that an increased rating for the Veteran's service-connected bilateral plantar fasciitis is not warranted, as the disability does not closely approximate severe disability.  Notably, there is no objective evidence of marked deformity, to include pronation, swelling, or characteristic callosities in either foot.  Moreover, there is no evidence of marked inward displacement and severe spasm of the tendo Achilles on manipulation.  On the contrary, as discussed above, the VA examiners noted the absence of swelling, callosities, marked deformity, and abnormal weight-bearing.  Although pain on manipulation was noted, the January 2012 VA examiner specified that the Veteran's pain threshold was questionable, as the Veteran grimaced with pain everywhere he was touched.  While the Board acknowledges the Veteran's complaints of pain and loss of motion and function, the Board ultimately places more weight on the objective findings of the VA examiners that the Veteran's his range of motion was normal, x-rays were normal, etc., based on their medical expertise.  Accordingly, the Board finds that the overall severity of the Veteran's bilateral plantar fasciitis disability does not approximate severe or pronounced disability in either foot.  As a severe disability has not been demonstrated in either foot, a disability rating in excess of 10 percent, as per Diagnostic Code 5276, must be denied.

The Board has considered the Court's holding in DeLuca v. Brown, 8 Vet. App. 202 (1995); however, the Court has held that where a diagnostic code is not predicated on a limited range of motion alone, the provisions of 38 C.F.R. §§ 4.40 and 4.45 do not apply.  See Johnson v. Brown, 9 Vet. App. 7, 11 (1996).  Such is the case with Diagnostic Code 5276.

The Board has considered whether the Veteran may be entitled to a higher rating under any other diagnostic code.  Diagnostic Codes 5277, 5278, 5279, 5280, 5281, 5282 and 5283 are not for application because the medical evidence does not indicate atrophy of the musculature, disturbed circulation and weakness of the feet, claw foot, hallux rigidus, hammer toe, or malunion or nonunion of tarsal or metatarsal bones.  The Board adds that no limitation of motion is shown.

Finally, the Board has considered whether it would be appropriate to assign a higher rating under Diagnostic Code 5284 (other foot injuries).  The Board finds, however, that Diagnostic Code 5284 is not the most appropriate code to use because it is a very general, catch-all provision which is intended to cover a variety of foot disabilities.  On the other hand, Diagnostic Code 5276 expressly contemplates the exact anatomical location, symptomatology, and functions that are affected by the symptomatology shown by the Veteran's foot symptoms.  Therefore, the Board finds that the current 10 percent rating for bilateral plantar fasciitis is most accurately assigned under the specific provisions of Diagnostic Code 5276, acquired flatfoot, as the January 2012 VA examiner provided a diagnosis of pes planus.  The Board finds that this is consistent with what the Court has referred to as "the canon of interpretation that the more specific trumps the general."  See Zimick v. West, 11 Vet. App. 45, 51 (1998) ("a more specific statute will be given precedence over a more general one . . . .") (quoting Busic v. United States, 446 U.S. 398, 406 (1980)); see also Kowalski v. Nicholson, 19 Vet. App. 171, 176-77 (2005).  Therefore, the specific diagnostic code, Diagnostic Code 5276, which rates acquired flatfoot, is properly applied here, rather than the more general Diagnostic Code 5284.

In short, the Board finds that the disability picture represented by the above evidence does not meet the criteria for an evaluation greater than 10 percent.

D.  Lumbar Spine

The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine.  38 C.F.R. § 4.71a (2012). 

Notes appended to the rating formula for diseases and injuries of the spine specify that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  Id., Note (2).  Provided, however, that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion generally recognized by VA.  Id., Note (3).  Further, the term "combined range of motion" refers to "the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation"; provided, however, that the aforementioned normal ranges of motion for each component of spinal motion, as recognized by VA, are the maximum that can be used for calculation of the combined range of motion, and each range of motion measurement is to be rounded to the nearest five degrees.  Id., Notes (2) and (4).  Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Note (6) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  Id.

These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, id, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine."  68 Fed. Reg. 51,455 (August 27, 2003) (Supplementary Information).

Spine conditions rated under DC 5243, for intevertebral disc syndrome, may be rated alternatively based on incapacitating episodes.  The criteria provide for a 10 percent rating where intevertebral disc syndrome is manifested with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months.  A 20 percent rating was warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months.  "Incapacitating episodes" was defined in Note (1) as a period of acute signs and symptoms due to intevertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  Note (2) also allowed the Veteran to be rated separately for musculoskeletal and neurological manifestations under appropriate diagnostic codes if it would result in a higher combined evaluation for the disability.

In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures.  It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  See 38 C.F.R. § 4.40.  The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement.  See 38 C.F.R. § 4.45.

Service connection was originally granted for lumbar strain in a June 2007 decision.  The present claim for a disability rating in excess of 10 percent was filed in November 2009.

The VA outpatient records for the time period pertinent to this claim are negative for treatment for lumbar strain.

On VA fee-basis examination in March 2010, the Veteran reported experiencing pain in his lower back and hips.  The Veteran described his pain and stiffness as severe.  The Veteran reported that he took Motrin and used a heating pad.  He used railings to steady himself when he walked.  He reported experiencing weakness.  The examiner observed that the Veteran's gait and posture were normal.  The curvatures of the spine were normal.  The spine was symmetrical in appearance.  No ankylosis was observed.  Forward flexion of the thoracolumbar spine was to 30 degrees.  Extension was to 10 degrees.  Left lateral flexion was to 10 degrees.  Right lateral flexion was to 20 degrees.  The examiner indicated that the Veteran was unable to perform left and right lateral rotation.  Pain, fatigue, and lack of endurance were present on examination.  Weakness, incoordination, and muscle spasm were not found.  Lower extremity sensory function was deemed normal.  The Veteran did not suffer from bladder, bowel, or erectile dysfunction.  No incapacitating episodes were present during the previous 12 months.  No instability was objectively observed.

On VA compensation and pension examination a month later in April 2010, the Veteran reported no radiation of pain.  No incontinence, erectile dysfunction, or assistive devices were reported.  The Veteran complained of stiffness, fatigue, and weakness.  He said he was only able to stand for 20 minutes and walk a single block.  No falls or unsteadiness were reported.  The Veteran reported experiencing flare-ups with bending, prolonged walking, standing, and carrying loads.  The Veteran stated that in his work as a corrections officer, he was unable to use any force to help bring down prisoners when needed.  He reported missing work due to increased pain and difficulty getting out of bed.  The Veteran reported experiencing four incapacitating episodes within the past year in which he was ordered by a physician to be in bed due to his lumbar pain and discomfort.

The examiner found tenderness on palpation of the paraspinous lumbar muscles.  Forward flexion of the thoracolumbar spine was to 62 degrees with pain at the end of movement and no loss of motion with repetition.  Extension was to 15 degrees with pain at the end of movement and no loss of motion with repetition.  Right lateral flexion was to 25 degrees with pain at the end of movement and no loss of motion with repetition.  Left lateral flexion was to 20 degrees with pain at the end of movement and no loss of motion with repetition.  Right and left lateral rotation was to 25 degrees with pain at the end of movement and no loss of motion with repetition.  The examiner reported that neurologically, the Veteran had good sensation of the lower extremities.  An X-ray yielded normal results.

On VA examination in January 2012, the Veteran described experiencing constant pain that rated a 10 on a 1 (low) to 10 (high) pain scale.  The examiner found localized tenderness or pain to palpation of the thoracolumbar spine.  The examiner questioned the Veteran's pain threshold and commented that the Veteran didn't even carry a diagnosis of lumbar back pain in his VA medical center records.  The examiner further noted that the Veteran was seen by a chiropractor in 2010 with cervical neck pain aver a motor vehicle accident, at which time the report read that the rest of his back below the neck was negative except for muscular lower back pain with X-rays that coincided with muscle spasms.  The examiner noted that on present examination, there was no guarding or muscle spasm of the thoracolumbar spine.  Muscle strength testing yielded normal strength for bilateral hip flexion, bilateral knee extension, bilateral ankle plantar flexion, bilateral ankle dorsiflexion, bilateral great toe extension.  The examiner specified that the Veteran did not have muscle atrophy.  Bilateral knee and ankle reflexes were deemed normal.  The sensory examination was normal for the upper bilateral thighs, bilateral knees, bilateral lower legs, and bilateral feet.  The examiner indicated that the Veteran exhibited no signs of radiculopathy.  No neurologic abnormalities were found.  The examiner wrote that the Veteran did not have intevertebral disc syndrome of the thoracolumbar spine.  The Veteran did not require any assistive devices as a normal mod of locomotion.  Imaging studies of the thoracolumbar spine were negative for arthritis, vertebral fracture, or significant results.  The examiner opined that the Veteran's thoracolumbar spine condition did not impact his ability to work.

The examiner recorded the Veteran's complaints that he could hardly walk and had pain all over his lower back and feet and commented that the Veteran appeared to have a low pain threshold.  The examiner reported that the Veteran was unwilling to even try to perform forward flexion of the thoracolumbar spine beyond 10 degrees.  However, the examiner commented that when the Veteran undressed, bent over to take off his shoes, mount and dismount the examination table, the Veteran had apparently painless flexion to at least 75 degrees.  The examiner pointed this fact out to the Veteran as the Veteran performed another flexion, and the Veteran then refused to try flexing again from an upright position.  The Veteran stated that the last time he had a compensation and pension examination of his back, he had to go directly to the emergency room afterwards.  The examiner commented that there was no record of the Veteran's visit to the emergency room, and the Veteran refused to attempt other measurements.  The examiner further noted that the Veteran drove himself to the examination.  

Having reviewed the record, the Board finds that a disability rating in excess of 10 percent is not warranted for the Veteran's back disability.  

Specifically, while the Veteran is certainly competent to report symptoms that he is able to observe through his senses, the Board finds his statements to not be credible due to their inconsistencies.  For example, in March 2010 the Veteran told a VA fee-basis examiner that no incapacitating episodes had been experienced during the previous 12 months.  The next month, in April 2010, the Veteran told a VA compensation and pension examiner that a physician had prescribed bedrest for four incapacitating episodes he experienced during the previous 12 months.  These statements are contradictory on their face; additionally, the medical treatment records are negative for any prescribed bedrest or incapacitating episodes.  The Board further notes that during his January 2012 VA compensation and pension examination, the Veteran stated that he could not bend forward more than 10 degrees, but the VA examiner observed the Veteran bend forward to about 75 degrees to undress and hoist himself on the table.  Due to these contradictions, the Board finds the Veteran's statements to the examiners and to VA to not be credible.

None of the examiners of record found evidence of paraspinal muscle spasm, guarding, or scoliosis.  As outlined above, the Veteran's reported range of motion findings appear to not be credible, as he told the January 2012 VA examiner that he could not perform forward flexion of the thoracolumbar spine to more than 10 degrees, yet the examiner observed apparent painless flexion to about 75 degrees at other times during the examination.  The Board acknowledges that the March 2010 fee-basis examiner recorded a forward flexion finding of 30 degrees; however, as noted above, the Veteran has shown himself to not be credible concerning his abilities.  The Board further notes that within a month of the March 2010 fee-basis examination, the Veteran was able to perform forward flexion of the thoracolumbar spine to 62 degrees at an April 2010 VA examination.  Again, the January 2012 VA examiner observed apparently painless forward flexion of the thoracolumbar spine to 75 degrees.  These findings lead the Board to conclude that a rating in excess of 10 percent for lumbar strain is not warranted.

The Board has considered the Veteran's functional loss, as the medical evidence shows that the Veteran has consistently complained of pain in the back.  38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995).  In this case, however, the 10 percent rating fully contemplates and compensates the Veteran for his functional loss.  Even accounting for the Veteran's painful thoracolumbar motion, his inconsistent and not credible reports would not warrant a 20 percent rating.  Moreover, the Veteran had observed normal muscle strength and on examination his motion has been limited only by pain, which is fully contemplated in the 10 percent rating.  There is otherwise no evidence of significant impairment of motor skills, muscle function, or strength attributable to the Veteran's back disability.  

The Board also notes that, according to Note (1), any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, must be evaluated separately under the appropriate diagnostic code.  

In this regard, the Board notes none of the evidence of record indicates that the Veteran suffers from any neurological disability secondary to the service-connected low back disability.  As such, the Board concludes that an additional separate rating is not warranted under Note (1) for any period of time on appeal.  In addition, the Veteran has not been diagnosed with intevertebral disc syndrome; therefore, alternate evaluation under DC 5243 is not warranted.

In summary, the Board finds that a disability rating in excess of 10 percent for service-connected lumbar strain is not warranted.  Such is the case even with consideration of alternative DCs.

E.  Left Ear Hearing Loss

Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing, as set forth under 38 C.F.R. § 4.85.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  See 38 C.F.R. § 4.85.  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id.  

When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately.  See 38 C.F.R. § 4.86(a). 

When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  That numeral will then be elevated to the next higher. See 38 C.F.R. § 4.86(b).

The Veteran was granted entitlement to service connection for a left ear hearing loss disability in a June 2007 rating decision.  In October 2009, the Veteran filed the current claim for an increased rating for his left ear hearing loss disability.

In June 2009, the Veteran underwent VA fee-based audiological examination.  The Veteran remarked that it was most difficult to hear when he was watching television or trying to hear other people talk.  Pure tone thresholds, in decibels, were as follows:
 

HERTZ

1000
2000
3000
4000
AVG
LEFT
75
75
115
115
95

The examiner administered a Stenger test and reported that the results were inconsistent and inconclusive.  Speech audiometry revealed speech recognition ability of 0 percent in the left ear; however, the examiner commented that the speech test results were very inconsistent and not reliable.  Likewise, the examiner noted that the responses obtained for the pure-tone testing were inconsistent and unreliable.  It was further noted that the speech testing did not correlate with the pure-tone testing for both ears.  She noted that at some frequencies, the bone conduction thresholds were greater than the air conduction thresholds.  The examiner provided a diagnosis of profound hearing loss in the left ear.  The examiner further opined that the test results were not reliable, as the Veteran gave inconsistent responses to the behavioral hearing test.  She recommended that other tests be scheduled to obtain more objective results.

On VA audiological examination in November 2010, the audiologist said that the Maryland CNC Word List Speech Recognition Test was too unreliable to score.  The Veteran complained that his tinnitus made it impossible to give consistent results for audiometric testing.  However, the audiologist noted that the objective test measures used for acoustic immittance testing were within normal limits.  The examiner stated that middle ear function was measured using the acoustic immittance test battery, and the resulting tympanograms and acoustic reflexes were within normal limits.  The examiner remarked that pure tone and speech audiometry were attempted, but the Veteran was unable to complete the tasks required to respond due to his report of severe tinnitus.

On VA audiological examination in January 2012, the audiologist attempted to perform pure tone testing.  The examiner remarked that the Veteran's responses were unreliable and inconsistent, despite having been given instructions on how and when to respond.  

The examiner explained that due to the Veteran's unreliable subjective responses, she completed objective otoacoustic emissions (OAE) testing utilizing the Biologic Scout Diagnostic OAE Program.  The examiner noted that left ear test results indicated the presence of normal DPOAE responses at 2016 to 3984 Hz and absent at 1453 Hz and from 5672 to 8016 Hz.  The examiner then explained that the frequency regions where the DPOAE responses were present were consistent with normal or near normal hearing thresholds.  The examiner later explained that present objective testing results indicated normal or near normal hearing sensitivity for a large part of the frequency range (1000 to 4000 Hz) in both ears.

The examiner further remarked that use of the Maryland CNC Word List test was not appropriate for the Veteran because of inconsistent speech discrimination scores that made combined use of puretone average and speech discrimination scores inappropriate.  The examiner observed that acoustic immittance, ipsilateral acoustic reflexes, and contralateral reflexes in the left ear were all normal.  The examiner concluded that the results of the day's testing were unreliable and could not be used to determine current hearing sensitivity.  The examiner added that the Veteran's hearing loss should not preclude gainful employment.

The Board notes that service connection is only in effect for a hearing loss disability of the left ear.  As noted above, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing, as set forth under 38 C.F.R. § 4.85.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The nonservice-connected right ear is assigned Level I for rating purposes.  See 38 C.F.R. § 4.85(f).

The Veteran stated in the November 2010 VA examination that he was unable to give consistent results due to his tinnitus.  However, the audiologist noted that the objective test measures used for acoustic immittance testing were within normal limits.  Additionally, the January 2012 VA examiner remarked that immittance testing yielded normal results, and the January 2012 VA examiner also specified that present objective testing results indicated normal or near normal hearing sensitivity for a large part of the frequency range (1000 to 4000 Hz) in both ears.  The Board finds the reports of the VA examiners to be more persuasive than the Veteran's comments, as the reports of the VA examiners were based on objective audiological testing.  

The Board notes that, while VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence).  The Veteran was afforded three different VA examinations:  in December 2009, November 2010, and January 2012.  The December 2009 examiner specifically recommended OAE testing; OAE testing was performed by the January 2012 examiner.  In all three examinations, the examiners remarked that the test results were not reliable due to the Veteran's inconsistent responses.  The January 2012 VA examiner commented that the Veteran was given specific instructions on how and when to respond, and the Veteran's responses were still inconsistent.  The Veteran has been given three different opportunities to cooperate with VA examiners; the Board finds that the duty to assist has been fulfilled.

In short, there is no evidence of record that shows that the Veteran suffers from Level X or Level XI hearing loss in his service connected left ear, as is required for a compensable evaluation under Diagnostic Code 6100 with a non-service-connected right ear hearing loss disability.  To the extent that the Veteran contends that his left ear hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report his symptoms such as difficulty hearing and having others talk louder, is not competent to report that his hearing acuity is sufficient to warrant a compensable evaluation under VA's tables for rating hearing loss disabilities.  See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Moreover, the inconsistencies detailed in the examination reports also call into question the credibility and veracity of his reports of subjective symptomatology. 

Based on the discussion above, the Board concludes that the weight of the evidence is against assignment of a compensable evaluation for the Veteran's service connected left ear hearing loss disability.

F.  Extraschedular Considerations

In addition, the Board has considered whether the Veteran is entitled to greater levels of compensation on an extra-schedular 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). 

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 first 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 exceptional disability pictures that the available schedular evaluations for the PTSD, pseudofolliculitis barbae, bilateral plantar fasciitis, lumbar spine disability, and left ear hearing loss disability are inadequate.  A comparison between the levels of severity and symptomatology of the considered disabilities with the established criteria for each, shows that the rating criteria reasonably describe the Veteran's disabilities levels and symptomatology.

The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms."  The Board finds that the evidence does not demonstrate an exceptional or unusual clinical picture beyond that contemplated by the rating criteria. 

In short, there is nothing in the record to indicate that the service-connected disabilities on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular ratings.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired).  The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted.

II.  Service Connection Claims

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131 (West 2002).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b) (2012).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Concerning the Veteran's reserve service, service connection may be established for a disability resulting from (1) a disease or injury incurred in or aggravated by active duty or ACDUTRA, or (2) an injury incurred in inactive duty training.  See 38 U.S.C.A. §§ 101, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.1, 3.6 (2012); see also Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). 

A.  Tinnitus

The Veteran contends that his tinnitus had its onset during active service, and is a symptom associated with his service-connected left ear hearing loss.  He reported having tinnitus ever since active service.  The Veteran is competent to testify on factual matters of which he has first-hand knowledge.  Washington v. Nicholson, 19 Vet. App. 362 (2005).

Here, the service treatment records are negative for any signs, symptoms, or diagnoses of tinnitus.

In a VA outpatient record dated June 2005, the Veteran complained of ringing in his ears.

On VA audiological examination in July 2006, the Veteran explained that he was exposed to noise during active duty through his job as a machine gunner.  He denied having any post-service noise exposure.  The examiner performed audiological tests and reviewed the service treatment records.  The examiner noted that the Veteran's assertions of noise exposure in the military was supported by the record, as the record documented that the Veteran was enrolled in a hearing conservation program and was provided protective hearing devices.  The examiner remarked that there was no documentation of tinnitus, and there was no physiological evidence that acoustic trauma caused the Veteran's claimed tinnitus.  The examiner opined that considering all the evidence, it was not as likely as not that the Veteran's tinnitus resulted from acoustic trauma during his military service.

During a VA examination in December 2009, the Veteran complained of ringing in both of his ears.  The examiner recorded the Veteran's reported history of ringing in his ears beginning in 2001.  The examiner provided a diagnosis of tinnitus and indicated that the tinnitus was as likely as not a symptom associated with hearing loss.

On VA audiological examination in November 2010, the examiner remarked that the Veteran was exposed to the noise of small arms and machine guns while he was on active duty.  No other occupational or recreational noise exposure was claimed.  The Veteran complained of constant tinnitus that started while he was on active duty.

On VA audiological examination in January 2012, the examiner reviewed claims file and commented on the hearing evaluations from the treatment records.  She noted that the Veteran was exposed to gunfire, grenade launchers, machine gun fire, bombs, and helicopters while he was on active duty.  She noted that the Veteran reported noticing tinnitus two years into his military service, but the Veteran did not correlate the onset to a specific event or incident.  The Veteran reported a constant ringing in both ears that was worse in his left ear.  After conducting the examination and reviewing the records, the examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure.  The examiner explained that the Veteran did not correlate the onset of his tinnitus to a specific event or incident in the military, and present objective testing results indicated normal or near normal hearing sensitivity for a large part of the frequency range (1000 to 4000 Hz) in both ears.  She remarked that earlier test results which showed hearing loss were not consistent with a noise-induced hearing loss and were not consistent with the present examination results.  She found no evidence of acoustic trauma.

When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered.  The opinion is considered probative if it is definitive and supported by detailed rationale.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  A medical opinion that contains only data and conclusions is not entitled to any weight.  "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

The July 2006 and January 2012 VA examination reports weigh against a finding that tinnitus is related to disease or injury in active service.  In fact, the January 2012 examiner explained that the Veteran did not correlate the onset of his tinnitus to a specific incident in the military, and a review of the evidence was not consistent with a noise-induced hearing loss or acoustic trauma.  The Board finds the January 2012 VA examination report is factually accurate, fully articulated, and contains sound reasoning.  Therefore, the January 2012 VA examination report is afforded significant probative value.  

The December 2009 VA examiner opined that it was at least as likely as not that the Veteran's tinnitus was a symptom associated with his hearing loss.  Additionally, the November 2010 VA examiner indicated that the Veteran complained of tinnitus from his time on active duty.  However, neither examiner gave reasons to support the given opinions.  As each of these examiners merely gave a bare opinion unsupported by other evidence, the Board finds their opinions to be of lesser probative value and outweighed by the opinion of the January 2012 examiner.

The Board recognizes that the Veteran is competent to report the onset of symptoms in service, and that he experienced some ringing in his ears since service.  To this extent, his reports are of some probative value.  However, as shown in the discussion above pertaining to his claims for higher ratings for his service-connected back and left ear hearing loss disabilities, the Veteran has a tendency to provide inconsistent reports of his symptomatology.  The inconsistent and contradictory reports by the Veteran to various VA examinations calls into question the veracity of his reports of a continuity of tinnitus since service.  Further, his present reports of in-service onset of symptoms with a continuity of such symptoms to the present is contradicted by contemporaneous service records which fail to document any complaints or history of tinnitus.   

Ultimately, the Board places far more probative weight on the opinion of the January 2012 VA examiner, who considered the Veteran's complaints, but also considered the service treatment records, test results, and other reports of record.

The Board is within its province to weigh the Veteran's statements and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  As indicated above, the most probative evidence of record indicates that the tinnitus is not in any way related to active service.

In short, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against granting service connection for tinnitus.

B.  Residuals of an Eye Injury

The Veteran claims that he has a bilateral eye disability that was incurred due to sand storms he was exposed to while on active duty.

A June 2005 VA outpatient record contains the Veteran's complaints of vision problems.  

On a September 2005 Report of Medical History, the Veteran indicated that he experienced eye trouble.  He specified that he was required to wear glasses all of the time.

On VA general examination in July 2006, the examiner noted that the Veteran's pupils were equal, round, and reactive to light and accommodation.

A January 2008 optometry clinic note reflects that the Veteran had normal intraocular pressure, normal extraocular movements, normal pupils, normal corneas, normal uveal tract, normal lenses, normal optic discs, and normal retinas.  The examiner noted that the external eyes and eyelids showed no abnormalities.  The diagnoses given were refractive error and astigmatism.  An August 2009 optometry clinic note contains similar findings.

In December 2009, the Veteran stated that he had not been diagnosed with a specific eye disease, but he had extensive sensitivity to the sun.

On VA eye examination in April 2010, the Veteran reported experiencing blurred vision with near objects, difficulty reading, and headaches.  He said he was very sensitive to light.  There was no history of eye surgery and no diplopia.  The examiner indicated that there was no ocular cause for the Veteran's light sensitivity, and no diagnosis for light sensitivity was given.  The examiner indicated that the Veteran's light sensitivity was as likely as not due to a traumatic brain injury.  The only diagnosis given was latent hyperopia.

Upon review of the record, the Board finds that service connection is not warranted for a bilateral eye disability.  As an initial matter, the Board observes that congenital or developmental defects and refractive error of the eye are not diseases or injuries within the meaning of the applicable legislation.  38 C.F.R. §§ 3.303(c), 4.9.  In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, hyperopia, and presbyopia even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection.  38 C.F.R. §§ 3.303(c), 4.9.  Thus, VA regulations specifically prohibit service connection for refractive error unless such defect was subjected to a superimposed disease or injury which created additional disability.  See VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury).  There is no indication that the Veteran's refractive error has been caused by any specific event such as an in-service injury. 

The Board acknowledges that the Veteran is competent to report a decrease in visual acuity.  However, while he may be competent to report decreased visual acuity, objective testing revealed no change during service.  The Board places more probative weight on the results of contemporaneous objective clinical testing than on the Veteran's lay assertions.  Additionally, the Veteran is not competent to state that decreased visual acuity is due to anything other than refractive error.  See Jandreau v. Nicholson, 492 F.3d 1372   (2007).  As noted above, absent superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection.  The evidence contains no suggestion of any superimposed disease or injury.  The most probative evidence establishes that there is no superimposed disease or injury which has resulted in the claimed vision loss.  

The Board recognizes that the Veteran has complained of light sensitivity.  The April 2010 VA examiner indicated that the Veteran's light sensitivity was as likely as not associated with a traumatic brain injury.  As noted above, the issue of service connection for a traumatic brain injury has been referred to the RO for appropriate development.  However, the April 2010 VA examiner specified that the Veteran's light sensitivity had no ocular cause, and the present claim is for service connection for a bilateral eye disability.  As such, the Board must conclude that the preponderance of the evidence is against the claim of entitlement to service connection for a bilateral eye disability.

C.  Sleep Apnea

The Veteran claims that he has sleep apnea due to active duty.

The Veteran indicated on a September 2005 Report of Medical History (RMH) that he had frequent trouble sleeping.  He specified that he could not sleep at night as he had nightmares, fought in his sleep, and would stop breathing.

A VA sleep study conducted in June 2010 reflects that the Veteran had obstructive sleep apnea/hypopnea syndrome.

A June 2010 lay statement from S.W. reflects that the Veteran was constantly tossing and turning at night.  She mentioned that there were many nights where he talked, fought, and kicked in his sleep.  She mentioned that the Veteran snored very loudly, and at times it seemed as though he stopped breathing.  

On VA compensation and pension examination in July 2012, the examiner specified that the claims file was reviewed.  The examiner recorded the Veteran's history of snoring really loudly while on active duty.  The examiner commented that the Veteran reported having sleeping problems on the September 2005 RMH.  It was further noted that the Veteran used a CPAP at night and was taking medication.  The examiner reviewed the results of the prior sleep study.  The examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by his service.  The examiner related that although the Veteran commented on his September 2005 RMH that he had sleeping problems and would stop breathing, he also complained of several other respiratory related problems including asthma or any breathing problem related to exercise.  The examiner further noted that an examiner wrote on the September 2005 RMH that the Veteran denied having a history of asthma.  The examiner observed that the Veteran's weight while he was in the military was 164, and his present weight was 223, which represented a significant weight gain.  The examiner opined that the weight gain was more likely the cause of the Veteran's sleep apnea, and the signs and symptoms that he noted while in the military were more likely due to PTSD.

Upon review of the record, the Board finds the July 2012 VA examination report is factually accurate, fully articulated, and contains sound reasoning.  The examiner considered the Veteran's reported history, service treatment records, and post-service treatment records.  Additionally, the examination report was generated by an advanced nurse practitioner who had the training and expertise necessary to offer an etiology opinion.  In her opinion, she accounted for the Veteran's symptoms and explained alternative etiologies.  Therefore, the January 2012 VA examination report is afforded significant probative value.  Significantly, there is no other medical opinion of record regarding the etiology of the Veteran's sleep apnea.

The Board recognizes that the Veteran is competent to report the onset of symptoms in service, and that he experienced breathing and sleep difficulties.  Additionally, S.W., as a lay person, can report signs of the Veteran's sleep difficulties that she is able to observe through her senses.  To this extent, their reports are of some probative value.  Ultimately, however, the Board places far more probative weight on the opinion of the July 2012 VA examiner, who considered the Veteran's complaints, but also considered the service treatment records, test results, and other reports of record.

The Board is within its province to weigh the Veteran's statements and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  As indicated above, the most probative evidence of record indicates that the Veteran's sleep apnea is not in any way related to active service.

In short, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against granting service connection for sleep apnea.

D.  Conclusion

In summary, the Board has considered the record and the Veteran's and other lay assertions, and finds that the preponderance of the evidence is against the claims of entitlement to service connection.  Consequently, the doctrine of reasonable doubt is not applicable in the instant appeal.  38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to an initial disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD), prior to November 5, 2009, and in excess of 70 percent thereafter, is denied.

Entitlement to an initial disability rating in excess of 30 percent for pseudofolliculitis barbae is denied.

Entitlement to an initial disability rating in excess of 10 percent for bilateral plantar fasciitis is denied.

Entitlement to a disability rating in excess of 10 percent for a lumbar spine disability is denied.

Entitlement to a compensable disability rating for a left ear hearing loss disability is denied.

Entitlement to service connection for tinnitus is denied.

Entitlement to service connection for residuals of an eye injury is denied.

Entitlement to service connection for sleep apnea is denied.


REMAND

During the Veteran's VA examinations, he has essentially reported an inability to sustain gainful employment due to PTSD symptoms, his facial scarring, and his joint pains.  On these facts, the claim for a TDIU is essentially a component of the claims for a higher rating.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). (holding that where a veteran submits evidence of a medical disability; makes a claim for the highest rating possible; and submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a TDIU).

The Board specifically notes that in connection with the current appeal in June 2012, the Veteran filed a formal claim for a TDIU.  No action has been taken on the Veteran's claim.  The RO should adjudicate this matter in the first instance, to avoid any prejudice to the Veteran.  See e.g. Bernard v. Brown, 4 Vet. App. 384, 393 (1993).

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should send to the Veteran and his representative a letter requesting that the Veteran furnish any additional information and/or evidence pertinent to the claim for a TDIU.

The RO/AMC's letter should specifically explain how to establish entitlement to a TDIU.  The RO should also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period).

2.  If the Veteran responds, the RO/AMC should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159.  All records/responses received should be associated with the claims file.  If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.

3.  After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo VA examination, by an appropriate physician, at a VA contracted facility.  All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail.

The physician should render an opinion, based upon review of the record and consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's service-connected disabilities, either individually or in concert, render him unable to obtain or retain substantially gainful employment.

The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report.

4.  The RO/AMC should also undertake any other development it determines to be warranted.

5.  Then, the RO or the AMC should readjudicate the Veteran's claim.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response.  The case should then be returned to the Board for further consideration, if otherwise in order.

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. 2012).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs