Citation Nr: 1312435 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 08-26 845 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to a disability rating for posttraumatic stress disorder (PTSD) in excess of 30 percent. REPRESENTATION Appellant (the Veteran) is represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from March 1967 to July 1967, and from May 1968 to September 1969. This appeal comes before the Board of Veterans' Appeals (Board) from May 2008 and March 2009 rating decisions of the RO in Boise, Idaho. In June 2010, the Board reopened the issue of service connection for bilateral hearing loss and remanded the merits of that issue, as well as the issue of service connection for sleep apnea, for additional evidentiary development. Those issues have since been returned to the Board for further appellate action. In June 2010, the Board also reopened and denied service connection for tinnitus and granted an increased 30 percent disability rating for posttraumatic stress disorder. The Board's decision with respect to those issues is final. See 38 C.F.R. § 20.1100 (2012). The current appeal of the rating for PTSD arises from a claim for increase received subsequent to the June 2010 decision. In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. The issue of entitlement to service connection for sleep apnea is addressed in the REMAND below and is therein REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issues decided herein has been accomplished. 2. The Veteran was exposed to loud sounds in service. 3. Hearing loss is not listed among the diseases for which the presumption of service connection for certain chronic diseases, and the provisions regarding chronicity in service and continuity of symptomatology after service must be considered; however, to the extent that sensorineural hearing loss may be considered an organic disease of the nervous system, symptoms of sensorineural hearing loss were not chronic in service, and were not continuous after service. 4. Current bilateral hearing loss is not related to service. 5. For the entire period of this appeal, PTSD has been manifested by 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). CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in service; an organic disease of the nervous system is not presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for a rating higher than 30 percent for PTSD have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Consideration of Evidence - Laws and Regulations After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) (a veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail). In rendering a decision, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336(Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The CAVC has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony 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(2007); Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. Sept. 14, 2009). Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The CAVC has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Certain specific conditions are considered chronic diseases under VA Law. These include the following: Anemia, primary; Arteriosclerosis; Arthritis; Atrophy, progressive muscular; Brain hemorrhage; Brain thrombosis; Bronchiectasis; Calculi of the kidney, bladder, or gallbladder; Cardiovascular-renal disease, including hypertension. (This term applies to combination involvement of the type of arteriosclerosis, nephritis, and organic heart disease, and since hypertension is an early symptom long preceding the development of those diseases in their more obvious forms, a disabling hypertension within the 1-year period will be given the same benefit of service connection as any of the chronic diseases listed); Cirrhosis of the liver; Coccidioidomycosis; Diabetes mellitus; Encephalitis lethargica residuals; Endocarditis. (This term covers all forms of valvular heart disease); Endocrinopathies; Epilepsies; Hansen's disease; Hodgkin's disease; Leukemia; Lupus erythematosus, systemic; Myasthenia gravis; Myelitis; Myocarditis; Nephritis; Other organic diseases of the nervous system; Osteitis deformans (Paget's disease); Osteomalacia; Palsy, bulbar; Paralysis agitans; Psychoses; Purpura idiopathic, hemorrhagic; Raynaud's disease; Sarcoidosis; Scleroderma; Sclerosis, amyotrophic lateral; Sclerosis, multiple; Syringomyelia; Thromboangiitis obliterans (Buerger's disease); Tuberculosis, active; Tumors, malignant, or of the brain or spinal cord or peripheral nerves; Ulcers, peptic (gastric or duodenal)(A proper diagnosis of gastric or duodenal ulcer (peptic ulcer) is to be considered established if it represents a medically sound interpretation of sufficient clinical findings warranting such diagnosis and provides an adequate basis for a differential diagnosis from other conditions with like symptomatology; in short, where the preponderance of evidence indicates gastric or duodenal ulcer (peptic ulcer). Whenever possible, of course, laboratory findings should be used in corroboration of the clinical data. 38 C.F.R. § 3.309(a). Where one of the above chronic diseases is shown to be chronic in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Analysis of Service Connection for Hearing Loss The Veteran asserts that he has bilateral hearing loss as a result of noise exposure in service. The Board notes that hearing loss is not listed among the diseases for which the presumption of service connection for certain chronic diseases, and the provisions regarding chronicity in service and continuity of symptomatology after service must be considered; however, to the extent that sensorineural hearing loss may be considered an organic disease of the nervous system, the Board finds that symptoms of sensorineural hearing loss were not chronic in service, and were not continuous after service. At entry into active service in May 1968, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 10 - -5 LEFT 20 10 10 - 5 The Veteran asserts that he was exposed to loud sounds in service. This is acknowledged to be true. In light of the details of the Veteran's service, his duty as a heavy equipment operator, his assertions as to lack of hearing protection, that he occasionally drove over land mines, and in light of the grant of service connection for tinnitus based on noise exposure in the service, the Board finds that the Veteran was indeed exposed to loud sounds in service. However, service treatment records reveal that the Veteran's hearing was clinically normal at service separation. Audiologic findings in August 1969 were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 5 - 0 LEFT 0 0 0 - 30 Thus, while noise exposure during service is acknowledged, and while hearing acuity at 4000 Hertz in the left ear was worse at service separation than it was at entry, the results at service separation demonstrate that symptoms of an organic disease of the nervous system, to include sensorineural hearing loss, were not chronic in service. After service, there is no record of complaint or treatment for hearing loss until the Veteran filed a claim for service connection in June 2006. Thus, symptoms of an organic disease of the nervous system did not became manifest to a degree of 10 percent or more within a year of service separation. Shortly after the June 2006 claim was denied, a private audiology examination in August 2006 reveals pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 50 65 75 70 LEFT 50 50 55 75 80 A September 2007 private evaluation reveals pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 55 65 60 LEFT 35 40 50 70 65 A November 2007 letter from a private otolaryngologist describes a slow progressive hearing loss over the years. The Veteran first noticed this after a tour in Vietnam where he experienced a lot of loud noise exposure. The contour of the audiogram is suggestive of and more likely than not the result of noise damage. An April 2008 VA audiological examination report reveals pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 55 65 55 LEFT 20 25 60 65 65 Speech recognition was 76 percent in each ear. The Veteran described in service noise exposure and working after service as a truck driver and as a farmer. The examiner opined that the military service did not cause hearing loss in either ear based on normal results at service separation. The report of VA examination in August 2010 reveals pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 65 70 65 LEFT 40 40 70 70 70 Speech recognition in the right ear was 48 percent; speech recognition in the left ear was 52 percent. The examiner acknowledged the November 2007 private otolaryngologist's findings, but noted that those were not based on actual knowledge of the readings in service. The examiner emphasized that the Veteran had normal hearing at service separation and opined that the current hearing loss was less likely than not related to military noise exposure. It is the Board's responsibility to evaluate the evidence and to assign each report or opinion its due probative weight. Owens v. Brown, 7 Vet. App. 429, 433 (1995). In reviewing the evidence, the Board is free to favor one medical opinion over another if the Board provides an adequate statement of reasons or bases. Id.; see also 38 U.S.C. § 7104(d)(1). Here, the Board finds that the opinions of the April 2008 and August 2010 VA examiners are more persuasive than the opinion of the private otolaryngologist's in November 2007. In so finding, the Board emphasizes the private otolaryngologist's finding that the Veteran first noticed a decrease in hearing acuity after experiencing a lot of loud noise exposure during his tour in Vietnam. Notably, the private otolaryngologist did not discuss the normal clinical findings at service separation. Moreover, the private otolaryngologist found that the contour of the audiogram is suggestive of and more likely than not the result of noise damage. However, there was no discussion of post-service sources of noise exposure such as working as a truck driver and doing farm work. In essence, the November 2007 opinion appears to be based to a significant degree on an inaccurate factual premise, i.e. that hearing loss was manifest in service. In contrast, the April 2008 and August 2010 VA opinions were made after reviewing the pertinent service separation findings, and in light of the post-service sources of noise exposure elicited from the Veteran. The Veteran believes that his hearing loss is related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, establishing the etiology of hearing loss that is temporally remote from the asserted cause, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). While the Veteran is competent to report his symptoms, including the perception of hearing loss, he has reported a slow progressive hearing loss over the years, and does not relate the onset of hearing loss to any specific incident. In contrast to his account of onset of hearing loss, the Veteran described a sudden onset of tinnitus corresponding to noise exposure in service. The RO granted service connection for tinnitus based on the correspondence in time between the acknowledged noise exposure in service and the onset of symptoms. In sum, while the Veteran was exposed to loud sounds in service, the Veteran's hearing was clinically normal at service separation. The clinicians who were aware of his audiological readings at service separation have concluded that they do not support hearing loss related to noise exposure in service. Accordingly, the Board finds that the current hearing loss is not related to service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Disability Ratings - Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Although the claimant's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). When a claimant is awarded service connection and assigned an initial rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), the CAVC extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." In the process of evaluating a mental disorder, VA is required to consider a number of pertinent factors, such as the frequency, severity, and duration of a veteran's psychiatric symptoms. See 38 C.F.R. § 4.126. After consideration of these factors, and based on all the evidence of record that bears on occupational and social impairment, VA must assign a disability rating that most closely reflects the level of social and occupational impairment a veteran is suffering. The VA Secretary, acting within his authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the VA Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive. The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997). See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). The schedular criteria incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. §§ 4.125, 4.130. The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The Court of Appeals for the Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Pertinent to the claim on appeal, the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: a 10 percent rating is warranted for PTSD if there is 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. A 30 percent rating is warranted for PTSD if there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted if it is productive of 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating, may be assigned for 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); and inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent rating contemplates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. 4.130, Diagnostic Code 9411. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). Analysis of Rating for PTSD In a January 2008 rating decision, the RO granted service connection and assigned an initial 10 percent rating for PTSD, pursuant to Diagnostic Code 9411, effective June 22, 2006. A decision of the Board in June 2010 granted an increased 30 percent initial rating for PTSD, but denied any rating in excess of 30 percent. The current appeal arises from a claim for an increased rating received on November 19, 2010. In the April 2011 rating decision now on appeal, the RO denied a rating in excess of 30 percent. The Board notes that the Board's June 2010 decision is final with respect to the evidence of record at that time. Nevertheless, the Board acknowledges that evidence prior to the date of that decision may be relevant in determining the current disability rating and the Board has considered all of the evidence in determining the rating for PTSD. In the November 2010 claim, the Veteran's attorney asserted that the Veteran believes his PTSD is worse than currently evaluated. The Veteran has trouble managing his emotions, especially anger. He has trouble with panic attacks that occur when he is in a tight place or difficult situations. He feels that he is frequently looking over his shoulder. He has sleep difficulties due to nightmares relating to military service that occur anywhere from twice a month to two times a week. On one occasion, he gave his wife a black eye. He was unaware that he struck her and feels bad that it happened. He has difficulty concentrating, forgetfulness, and tends to isolate from people. He sometimes lacks motivation to get his work done, especially when things are not done right. He could not tolerate PTSD group sessions as it brought back too many memories. The current 30 percent rating contemplates 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). In order to warrant the next higher 50 percent rating, the symptomatology would have to be productive of occupational and social impairment with reduced reliability and productivity. After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that the criteria for a rating in excess of 30 percent are not met and are not more nearly approximated than the criteria for the 30 percent rating currently assigned. In essence, while there are impairments of function regarding social and occupational matters, these are occasional and do not result in a sustained reduction in reliability and productivity. The Veteran was afforded a VA examination in March 2011. In conjunction with the examination, the Veteran completed supplemental testing including the Personality Assessment Inventory, the Mississippi Combat Stress Scale, and the PTSD Checklist. The principal symptomatology reported by the Veteran at the examination was that he experiences military-related nightmares. The frequency of these nightmares varies from "a couple of weeks without any at all" to 3 or 4 per week. Nevertheless, the Veteran also indicated that he currently sleeps approximately 8-9 hours a night and is generally satisfied with his sleep, but for frequent urination and difficulty falling back asleep on nights when he otherwise has combat related nightmares. Regarding the effect of this symptomatology on the Veteran's ability to function, the impact appears to be mild and consistent with previous examinations. The Veteran denied further legal history since his last examination, and he described no significant changes in his overall psychosocial functioning status relative to his last rating examination. Indeed, the examiner noted that a VA outpatient record in October 2009 reveal a negative PTSD screen. Moreover, his 2010 records do not reveal any complaints concerning PTSD. Regarding social functioning, the Veteran reported to the March 2011 examiner that he has "a good marriage." Moreover, he socializes with friends and goes to a local coffee shop approximately 2-3 times a week to interact with them. He denied any history of violence or assaultiveness and also denied any history of suicidal ideation or attempts. He denied the presence of suicidal or homicidal thoughts. The Veteran denied difficulty maintaining minimal personal hygiene and other basic activities of daily living. He denied obsessive or ritualistic behavior that interferes with routine activities. He rated his average level of depression at 5 on a scale of on a scale of 10, where 10 equals the worst depression imaginable. In addition, the Veteran denied any impairment of thought process or communication, nor was there evidence of delusions or hallucinations. Rate and flow of speech was within normal limits. He was fully oriented to person, place, and time. While he indicated the onset of short-term memory concerns over the past couple of years, given the absence of any significant changes in his overall PTSD profile, these cognitive changes, to the degree that they exist, were thought by the examiner to be not likely attributed to PTSD. Regarding the testing conducted by the examiner, the overall clinical scales were consistent with those previously obtained in other evaluations. The only clinically elevated scale pertained to anxiety related diseases scale, and this elevation was solely a result of a significant elevation on a subscale associated with traumatic stress, which was found to be consistent with his diagnosis of PTSD. None of the other clinical scales or other constituent subscales were significantly elevated. The score of 97 for the Mississippi Combat Stress Scale was consistent with previous administrations and is somewhat under a general cut point of 107 for combat related PTSD. The PTSD Checklist score of 49 was marginally below the recommended cut point of 50 and on this measure, and he was not found to satisfy criteria C for DSM-IV PTSD. The overall psychometric results were somewhat supportive of a diagnosis of PTSD, although generally indicate lower intensity of PTSD symptoms, relative to many other combat veterans. The March 2011 examiner assigned a GAF score of 65. A GAF score of 61-70 indicates "Mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." The March 2011 examiner provided the opinion that the Veteran continues to present with a range of symptoms largely consistent with a diagnosis of PTSD and which are most notable for significant emotional distress associated with trauma related nightmares. There have been no other significant changes in his psychosocial situation. The examiner specifically found that there was no evidence indicative of severity of symptoms which exceed his current rating of 30 percent. In sum, the Veteran's PTSD symptoms are generally mild and only occasionally impact his ability to function socially and occupationally. The Veteran's symptoms do not result in reduced reliability and productivity. Rather, they result in 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). The Board acknowledges the assertion of the Veteran's attorney that the Veteran believes his symptoms are recently worse; however, this is specifically contradicted by what he told the March 2011 VA examiner. As noted in the examination report, in response to the question whether his PTSD symptoms had changed since his last rating examination, the Veteran responded "not really, I don't think there have been any changes." He also denied receiving any type of psychiatric treatment since his last psychiatric evaluation. Regarding the assertion that the Veteran with panic attacks that occur when he is in a tight place or difficult situations, occasional panic attacks (weakly or less often) are included in the symptom examples at the 30 percent level. The description of the attorney of the limited frequency of these attacks appears more consistent with the symptom example at the 30 percent level than it does panic attacks more than once a week, which is included under the 50 percent level. Regarding the assertion that the Veteran has trouble managing his emotions, especially anger, the evidence demonstrates that, whether he has trouble or not, he is effective in managing his emotions. The Board notes the finding of the March 2011 examiner that the Veteran denied any history of violence or assaultiveness. The Board emphasizes that it is the effect of the symptomatology on social and occupational function, and not the mere presence of the symptomatology, that is determinative of any given rating. The Veteran's attorney has asserted that, on one occasion during a nightmare, the Veteran gave his wife a black eye; however, this was apparently unintentional as he reported that the Veteran was unaware that he struck her and felt bad that it happened. Thus, this is not probative of any trouble managing emotions. Regarding the assertion that the Veteran feels that he is frequently looking over his shoulder, the Board notes that suspiciousness is a symptom example under the 30 percent level, and neither the Veteran nor his attorney have provided examples of how suspiciousness has led to a reduction in reliability and productivity. Regarding the assertions as to sleep difficulties due to nightmares relating to military service that occur anywhere from twice a month to two times a week, chronic sleep impairment is also a symptom example listed under the 30 percent level. Moreover, as discussed above, the Veteran has reported that he is generally satisfied with his sleep. Regarding the assertion that the Veteran has difficulty with concentrating and forgetfulness, the Board notes that mild memory loss (such as forgetting names, directions, recent events) is among the symptom examples specified at the 30 percent level. Regarding the assertion that the Veteran sometimes lacks motivation to get his work done, especially when things are not done right, the Board emphasizes the word "sometimes." This is the cardinal distinction between a rating at the 30 percent and 50 percent level. The 30 percent rating occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. By contrast, the 50 percent rating contemplates a reduction in reliability and productivity that is not occasional. The Board acknowledges the Veteran's symptoms, as related by his attorney, and as related by the March 2011 VA examiner. The Veteran's symptoms and his overall level of impairment are fully consistent with a 30 percent rating, and do no suggest or demonstrate a rating at any higher level. For these reasons, the Board finds that the weight of the evidence is against a rating in excess of 30 percent for PTSD. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1) (2012), which provides procedures for referral or assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The VA Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Board finds that all the Veteran's PTSD symptoms are either explicitly part of the schedular rating criteria under the general formula for rating mental disorders at 38 C.F.R. § 4.130; are analogous to the schedular rating criteria (see 38 C.F.R. §§ 4.20, 4.21), or are "like or similar to" the schedular rating criteria (see Mauerhan at 442-43). The schedular rating criteria, Diagnostic Code 9411, specifically provides for disability ratings based on a combination of history and clinical findings. The Veteran has reported symptoms of irritability, social withdrawal, depressed mood, anxiety, panic, suspiciousness, chronic sleep impairment, and mild memory loss. These are specifically included in the rating schedule, and the assigned 30 percent disability rating specifically rates based on the degree of occupational and social impairment, including due to specific symptomatology. Moreover, the rating schedule provides for higher ratings where the appropriate type and degree of symptomatology is demonstrated. The GAF score reflects overall degree of impairment due to psychiatric disorders and is part of the schedular rating criteria. Because the schedular rating criteria are adequate to rate the Veteran's service-connected PTSD, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. In this case, the Veteran submitted his claim for service connection for hearing loss in December 2007. He was sent a letter in January 2008 which advised him of the information and evidence necessary to substantiate the underlying claim for service connection for hearing loss. That letter also advised him as to how disability ratings and effective dates were assigned in the event of a successful claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Since the January 2008 letter was sent to the Veteran prior to the initial adjudication of the claim in May 2008, there exists no error in the timing of this notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board also notes that in Kent v. Nicholson, 20 Vet. App. 1 (2006), the CAVC held that, in the context of an application for reopening, VCAA notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. Here, the Board reopened the claim for service connection for bilateral hearing loss in June 2010. Accordingly, that element of the claim has been substantiated and there are no further VCAA duties regarding reopening of service connection for bilateral hearing loss. The Veteran submitted his claim for an increased rating for PTSD in November 2010. He was sent a letter in December 2010 which advised him of the information and evidence necessary to substantiate his claim. That letter also advised him as to how disability ratings and effective dates were assigned in the event of a successful claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Since the December 2010 letter was sent to the Veteran prior to the initial adjudication of the claim in April 2011, there exists no error in the timing of this notice. See Pelegrini, 18 Vet. App. 112. In short, VA has complied with its duty to notify the Veteran in this case. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, and the Veteran's written assertions. Regarding Social Security Administration (SSA) records, the Veteran has not reported the existence of such records to VA and he informed the March 2011 VA examiner that he was receiving SSA retirement benefits, and that his wife was receiving SSA disability benefits. Based on the Veteran's assertions, there do not appear to be any pertinent records to obtain from SSA. In addition, the Veteran was afforded a VA examination in March 2011 to address the current manifestations and severity of his PTSD. This examination was adequate because it was performed by a medical professional based on a review of claims file, solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. Moreover, the resulting findings were consistent with the examination and the record. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The Veteran's attorney has argued that the March 2011 examination used to evaluate the Veteran's increased rating claim for PTSD was inadequate and he requested a new examination. However, despite a lengthy recitation of VA law surrounding VA examinations and the duty to assist, the only reason specified for the request in the Notice of Disagreement was that the Veteran does not believe the examination reflects his current level of functioning. Neither the Veteran nor his attorney explained why this is believed to be so, and neither provided any detail as to what aspects of the examination findings are inconsistent with his current level of functioning. In the VA Form 9, the attorney added that the Veteran believed that the examiner twisted the answers and questions around and the Veteran was very confused. Again, no specifics were identified. The Veteran is certainly capable of providing his assertions in writing, in particular, any facts which he believes were incorrectly reported by the examiner. In seven pages of written argument provided with the Notice of Disagreement and another seven provided with the VA Form 9, the Veteran and his attorney have provided only the vaguest assertions of error in the examiner's findings, and no specific details or facts that were erroneously reported. The Board finds that the March 2011 examination report reflects an adequate familiarity with, and discussion of, the Veteran's clinical history and present complaints, as well as a personal examination of the Veteran. Further, the examiner made findings that were pertinent to the criteria under the diagnostic code used to evaluate the Veteran's PTSD. The Board can find no indication that the examination was cursory or that the examiner did not give adequate attention to the Veteran's specific complaints. If indeed the examiner's findings do not reflect the level of disability asserted by the Veteran, this is not a reason to find an examination inadequate. The Veteran may provide details in writing regarding any errors in the examiner's report. Accordingly, the Board rejects the undetailed assertion of inadequacy and the request that another examination be scheduled simply to correct asserted factual errors which have not been specified. See also Counts v. Brown, 6 Vet. App. 473, 478-9 (1994) and Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (VA's . . . . "duty to assist" is not a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim). The Veteran was afforded VA examinations April 2008 and August 2010 to determine the nature and etiology of his claimed hearing loss. The Board finds that the August 2010 VA examination was adequate because it was performed by a medical professional based on a review of claims file, including the service treatment records, solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. Moreover, the resulting findings, opinion, and rationale were consistent with the examination and the record. Nieves-Rodriguez, 22 Vet. App 295. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Remand Compliance As noted above, this appeal involves a remand by the Board for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this case, the RO substantially complied with the Board's June 2010 remand instructions by arranging for an examination and opinion regarding direct service connection for hearing loss. As acknowledged by the examiner, the claims file was reviewed by the examiner in conjunction with the examination. The examiner provided the requested opinion as to whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that any identified current hearing loss is related to active military service, to include any acoustic trauma or symptomatology shown therein; or whether such a relationship to service based on causation, or aggravation is unlikely (i.e., a probability of less than 50 percent). The examiner's determination that the Veteran's hearing was clinically normal at service entry obviated the need for an opinion regarding aggravation. The examiner also discussed the pertinent evidence contained in the Veteran's service treatment records and post-service lay and medical evidence, as well as medical principles in support of her conclusions. The examiner also discussed the November 2007 letter from the private otolaryngology clinic. In sum, the RO substantially complied with the Board's remand instructions regarding service connection for hearing loss. ORDER Service connection for hearing loss is denied. A disability rating for PTSD in excess of 30 percent is denied. REMAND A remand is required regarding the issue of entitlement to service connection for sleep apnea to ensure that there is a complete record upon which to decide the Veteran's claim. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). In essence, the Board finds that several of its remand instructions regarding the issue of service connection for sleep apnea were not complied with, and that end result is that there was not substantial compliance with the remand regarding that issue. In the June 2010 remand, the Board instructed the RO to arrange for a supplemental opinion or, if deemed necessary, schedule the Veteran for an appropriate examination for his sleep apnea disorder. The Board specified that the claims file, to include a copy of the June 2010 remand must be made available to and reviewed by the examiner in conjunction with the examination. The Board also specified that the RO should provide appropriate clarification for the examiner regarding the Veteran's dates of active service and any documents relevant to the rendering of his or her opinion. Nevertheless, in the August 2010 supplemental opinion, the VA clinician reported "could not find the remand information referenced in the 2507 request." The Board finds that the failure of the examiner to review the Board's remand instructions is significant for two reasons. First, the RO did not provide a summary of the instructions in the examination request, but noted, "[p]lease have the examiner review the remand and instructions which is (sic) too lengthy to retype here." Second, the examiner's report does not address the essential point of the remand, which was to address an erroneous finding in a prior August 2009 VA opinion. The August 2009 examiner had found that sleep apnea was related to service because the Veteran had reported frequent trouble sleeping on a report of medical history and because "the guys" told the Veteran that he was a heavy snorer. However, the undated report of medical history cited by the examiner was found by the RO to have originated during the Veteran's National Guard service, and not during any period of active military service. This is significant as the designation "veteran" applies only to specific types of service. Veteran status for the period when an injury or disease was incurred is a prerequisite to service connection for such injury or disease. In sum, while a supplemental opinion was obtained in response to the Board's remand, the essential purpose of the remand was not fulfilled, as the August 2010 clinician did not have access to pertinent information. The CAVC has held that RO compliance with a remand is not discretionary, and that if the RO fails to comply with the terms of a remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). An inadequate examination frustrates judicial review. Hicks v. Brown, 8 Vet. App. 417, 422 (1995). If an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for rating purposes. 38 C.F.R. § 4.2 (2012). After review of the cited report of medical history, the Board finds that it was completed in May 1968 in conjunction with the Veteran's return to active duty. In so finding, the Board notes that the document identifies the Veteran's rank as SP4. The Veteran achieved this rank in December 1967, and was promoted to SP5 in December 1968. The cited document also identifies the Veteran's unit as Co. D, 116th Engr. Bn. Service records show that he transferred to that unit in May 1968. Accordingly, as found by the RO, the Veteran's reported history of frequent trouble sleeping refers to his history prior to return to active duty in May 1968. Notably, the report of medical history at separation from the initial period of active duty in July 1967 reflects that he had no frequent trouble sleeping. Therefore, the RO's determination that the cited document reflects a period that is not active service is correct. Accordingly, the issue of service connection for sleep apnea is REMANDED for the following action: 1. Obtain a supplemental opinion from the clinician who provided the August 2010 opinion on sleep apnea. If the same clinician is not available, obtain an opinion from another clinician. If the clinician determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The pertinent documents in the claims folder and the Board's remand instructions must be made available to and reviewed by the clinician. The Board's instructions are as before: The RO should provide appropriate clarification for the clinician regarding the Veteran's dates of active service and any documents relevant to the rendering of his or her opinion. The clinician should be instructed that the report of medical history on which the Veteran reported a history of frequent trouble sleeping was completed in May 1968 in conjunction with the Veteran's return to active duty. a. Provide an opinion as to whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that any identified current sleep apnea is related to a period of active military service, to include any symptomatology therein; or whether such a relationship to service based on causation, or aggravation is unlikely (i.e., a probability of less than 50 percent.) b. The clinician should discuss evidence contained in the Veteran's service treatment records and post-service lay and medical evidence as well as any medical principles in support of his or her conclusions. c. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. d. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. e. Note: It is important that, if any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon speculation, the clinician should clearly and specifically so specify in the report, and explain why this is so. 2. Readjudicate the remanded issue of service connection for sleep apnea. If the benefit sought on appeal is not granted, the Veteran and his attorney should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran 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 issue 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). ______________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs