Citation Nr: 1313490 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 10-47 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Whether the reduction of the evaluation of the Veteran's service-connected residuals of larynx cancer effective from 100 percent to 0 percent, effective November 1, 2010, was proper. 2. Whether new and material evidence has been received to reopen a claim for service connection for bilateral tinnitus. 3. Entitlement to an initial disability evaluation in excess of 30 percent from July 27, 2009 to December 20, 2010 for posttraumatic stress disorder (PTSD) and to a 50 percent evaluation thereafter. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from September 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2010 and August 2010 and rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issue of service connection for hoarseness as secondary to residuals of larynx cancer has been raised by the record, but has not been considered by the agency of original jurisdiction. Thus, it is referred to the RO, via the Appeals Management Center (AMC) in Washington, DC, for appropriate action. FINDINGS OF FACT 1. In a February 2010 rating decision, the RO granted service connection for cancer of the larynx and assigned a 100 percent disability evaluation, effective July 27, 2009. 2. The 100 percent evaluation for cancer of the larynx was in effect from July 27, 2009 to November 1, 2010, a period of less than five years. 3. In a May 2010 rating decision, the RO proposed a reduction in the rating for the Veteran's service-connected cancer of the larynx from 100 percent to 0 percent. After the proposed reduction, the Veteran was given 60 days to present additional evidence and was notified at his address of record. The rating decision also granted service connection for residuals of treatment for cancer of the larynx (mucositis and dysphagia), effective April 22, 2010. 4. In an August 2010 rating decision (final reduction), the RO reduced the 100 percent rating for cancer of the larynx to 0 percent, effective November 1, 2010, in accordance with the criteria set forth in Diagnostic Code 6819. 5. The Veteran's claim for service connection for bilateral tinnitus was denied in June 2008. He did not appeal that decision. 6. Evidence received since the June 2008 rating decision is either cumulative or redundant of evidence previously considered, or does not relate to an unestablished fact necessary to substantiate the claim. 7. For the period from July 27, 2009 onward, the Veteran's PTSD produces occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The reduction from 100 to 0 percent was made in compliance with applicable due process laws and regulations; was supported by the evidence contained in the record at the time of the reduction; reduction in disability for cancer of the larynx from 100 percent to 0 percent, effective November 1, 2010, was proper and in accordance with the law; the criteria for restoration of a 100 percent rating have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.105(e), 4.97, Diagnostic Code 6819 (2012). 2. The June 2008 rating decision denying service connection for bilateral tinnitus is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2012). 3. New and material evidence has not been received since the June 2008 rating decision sufficient to reopen a claim for service connection for bilateral tinnitus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 4. For the period from July 27, 2009 to December 20, 2010, the criteria for an initial disability evaluation of 50 percent for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.125, 4130, Diagnostic Code 9411 (2012). 5. For the entire appeal period, the criteria for an initial disability evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.125, 4130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice was not provided prior to the initial adjudication of the claim or if provided, was inadequate or incomplete, such an error can be "cured" by providing any necessary notice and then readjudicating the claim, including in a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. __ (2009). With regard to the Veteran's reduction in disability evaluation claim, the VCAA duties to notify and assist do not apply where the issue is a reduction in rating. The VCAA duties are only triggered by the receipt of a new "application" or claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b), (c). In the case of a reduction, there has been no application or claim, so the VCAA is inapplicable. However, there are specific particularized notice requirements which apply to a reduction in rating. The procedural safeguards afforded to the claimant in a reduction case are set forth under 38 C.F.R. § 3.105(e), and are required to be followed by VA before issuing any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). These specific notice requirements take precedence over the more general notice requirements found in the VCAA. The U.S. Court of Appeals for Veterans Claims (Court) has referred to "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, 176-7 (2005). As discussed in detail below, the procedural framework and safeguards set forth in 38 C.F.R. § 3.105(e) governing rating reductions were explained to the Veteran in adequate detail in a May 2010 proposed reduction letter and rating decision prior to the August 2010 final rating reduction. The Veteran was provided sufficient opportunity to present additional argument and evidence in opposition to the reduction. Therefore, consideration of the propriety of the rating reduction for cancer of the larynx proceeds to the merits of whether reduction in the rating was appropriate. With regard to the Veteran's petition to reopen and increased evaluation claims, VA has satisfied its duty to notify by issuing notice letters in September 2009 and February 2011. The letters advised the Veteran of what evidence was required to substantiate his claims, and of his and VA's respective duties for obtaining evidence. They provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. The September 2009 letter informed the Veteran of what constituted new and material evidence. The September 2009 letter also explained that his claim for tinnitus was previously denied because the evidence of record did not show that he had tinnitus in service or within one year of separation from service. Kent v. Nicholson, 20 Vet. App. 1 (2006). This appeal arises from disagreement with an initial evaluation following the grant of service connection. Once service connection is granted, the claim is substantiated and additional VCAA notice is not required; any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of prejudice with regard to the notice in this case, hence further VCAA notice is not required with regard to the initial rating appeal. After the February 2010 rating decision, the Veteran was notified in February 2011 that he needed to submit evidence showing that his PTSD had increased in severity. His claim was then readjudicated in the January 2012 SSOC. See Mayfield IV; see also Prickett, 20 Vet. App. at 376. The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, and reports of VA examinations for PTSD in January 2010 and February 2011. The examinations were adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. VA is not required to provide examinations for a petition to reopen a previously denied claim unless it is first reopened. 38 C.F.R. § 3.159(c). However, an examination was provided to the Veteran in January 2010. The examination was adequate because it was based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. The examiner also provided a rationale for the opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Reduction of Rating for Cancer of the Larynx A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C.A. § 1155 (West 2002). Prior to reducing a Veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1 , 4.2, 4.10, 4.13 (2012); see also Brown v. Brown , 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). VA is not limited, however, to medical indicators of improvement. Rather, VA may rely on non-medical indicators of improvement to show that a Veteran is capable of more than marginal employment. Id. It is essential both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.1. If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings on the examination report, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examinations or in use of descriptive terms. 38 C.F.R. § 4.13. Finally, it must be considered that the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Procedurally, where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran must be informed that he may request a predetermination hearing, provided that the request is received by the VA within 30 days from the date of the notice. If no additional evidence is received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the Veteran expires. 38 C.F.R. § 3.105(e). As to the propriety of the reduction, for reductions in rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections set forth in 38 C.F.R. § 3.344(a) and (b). Where a Veteran's schedular rating has been both stable and continuous for five years or more, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher evaluation. 38 C.F.R. § 3.344(a). The duration of the rating is measured from the effective date of the rating to the effective date of the reduction. Brown, 5 Vet. App. at 418. Moreover, though material improvement in the mental or physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Id.; Kitchens v. Brown, 7 Vet. App. 320, 324 (1995); Brown, 5 Vet. App. at 420-421. In this case, consideration of 38 C.F.R. § 3.344 is not warranted because the rating was not in effect for five years or more. The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In most cases, violations of the set of due process considerations applicable to rating reductions, or failure of the evidence to meet the standards for reducing an evaluation, render the underlying reduction void ab initio, rather than merely voidable. In fact, the Court has consistently held that when VA reduces a veteran's disability rating without following the applicable regulations, the reduction is void ab initio and will be set aside. Greyzck v. West, 12 Vet. App. 288, 292 (1999); Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated sustained, actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). However, post-reduction evidence may not be used to justify an improper reduction. The Board is required to establish, by a preponderance of the evidence, that a rating reduction on appeal is warranted. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). In a February 2010 rating decision, the RO granted service connection for cancer of the larynx and assigned an initial 100 percent evaluation under Diagnostic Code 6819, malignant neoplasms of any specified part of the respiratory system exclusive of skin growths. 38 C.F.R. § 4.97. The rating was effective July 27, 2009. In a May 2010 rating decision (proposed reduction) and an August 2010 rating decision (final reduction), the RO reduced the disability rating for cancer of the larynx from 100 to 0 percent, effective November 1, 2010. The reduction was based upon the fact that the Veteran's cancer treatment had ceased and there was no evidence that he still had cancer of the larynx. Instead, he had residuals from his radiation treatment in the form of mucositis and difficulty swallowing. In the May 2010 rating decision, the RO granted service connection for these two conditions, effective April 22, 2010. The Veteran's cancer of the larynx was initially evaluated under Diagnostic Code 6819, which provides for an 100 percent rating. 38 C.F.R. § 4.97. The note to Diagnostic Code 6819 states, "[a] rating of 100 percent shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after the discontinuation of such treatment, the appropriate disability rating shall be determined by mandatory VA examination." Id., Diagnostic Code 6819, Note. Further, if there has been no local recurrence or metastasis, the residuals must be rated. Id. Lastly, the Diagnostic Code notes that any change in evaluation based upon a subsequent examination is subject to the provisions of 38 C.F.R. § 3.105(e). Id. Initially, the Board finds that the RO satisfied the due process notification requirements under 38 C.F.R. § 3.105(e). Specifically, in a May 2010 notice letter and rating decision, the RO complied with these procedural requirements. He was given 60 days to present additional evidence and was notified at his address of record. He did not request a predetermination hearing. The Veteran was informed that the reason the RO proposed to reduce his rating from 100 to 0 percent was because larynx cancer was no longer shown after completion of treatment. Further, he was informed that after review of the record, additional disabilities that were secondary to his cancer treatment were service connected. In the May 2010 rating decision, the RO proposed to reduce the Veteran's disability evaluation for cancer of the larynx, but also granted service connection for mucositis and difficulty swallowing, which were side effects of his radiation treatment for the cancer. The effective date of the reduction, November 1, 2010, was effective the last day of the month after expiration of the 60-day period from the date of notice of the August 2010 final rating action, as set forth in the applicable VA regulation. See 38 C.F.R. § 3.105(e). Thus, all procedural requirements were met. Upon review of the entire record, the evidence supports the reduction of the Veteran's disability rating from 100 to 0 percent for his cancer of the larynx effective November 1, 2010. The reduction was proper for the reasons discussed below. Private medical records from Dr. A. S. show that the Veteran underwent radiation treatment for cancer of the larynx from August 2009 to September 2009. As a result, he had hoarseness and erythema. Following the cessation of radiation treatment in September 2009, the Veteran's cancer of the larynx did not return. Instead, he was left with residuals of radiation treatment. The Veteran underwent a VA nose, larynx, and pharynx examination in April 2010, approximately seven months after his radiation treatment ended. The examiner noted that the Veteran underwent radiation treatment and was undergoing follow up treatment with private physicians. The Veteran had residuals of radiation treatment in the form of mucositis, dryness of the throat, congestion of the mucosa of his pharynx and larynx, and trouble swallowing. The examiner concluded that there were not residuals of the cancer itself and no active disease was diagnosed. At his February 2011 VA general medical examination, the Veteran reported chronic laryngitis and a history of a vocal cord tumor two years prior. He reported having surgery and radiation treatment. He complained of hoarseness and difficulty swallowing. In March 2011, he underwent a second nose, larynx, and pharynx examination. He complained of difficulty swallowing, problems with speech, and throat dryness. The Veteran reported that he was undergoing follow up treatment with private physicians. No active cancer was diagnosed, instead the examiner found that he had residuals of larynx cancer. The remaining medical evidence of record shows that the Veteran's cancer was no longer active after completion of radiation treatment in September 2009. Rather, the record clearly shows that he receives treatment for its residuals, caused by the radiation treatment. The Veteran has submitted lay evidence in support of his claim. He argues that he is still undergoing cancer treatment, and therefore his 100 percent rating should remain in effect. In a June 2010 statement, the Veteran's wife, stated that the Veteran's radiation treatments made the skin on his neck very raw. She stated that he had difficulty swallowing even soft foods, and that he has been prescribed medication to induce saliva and mucus because his throat is so dry. She stated that his voice is very hoarse. The Veteran and his wife are competent to discuss observable symptoms such as his residuals of radiation treatment. Layno v. Brown, 6 Vet. App. 465 (1994). Further, their descriptions of his symptoms are credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The Board again notes that in the May 2010 rating decision, service connection was established for his residuals. A 30 percent evaluation was assigned for mucositis and a 30 percent evaluation was assigned for difficulty swallowing. This was done in accordance with the Note to Diagnostic Code 6819, which requires that residuals of cancer be separately rated. 38 C.F.R. § 4.97. The Veteran's assertion that he is currently receiving treatment for cancer is not competent, and is clearly contradicted by the findings of the VA examiners, who found no active cancer and instead diagnosed residuals of radiation treatment. 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, whether the Veteran currently has active cancer for which he receives treatment, 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) (lay persons not competent to diagnose cancer). The Veteran mistakes treatment for residuals of cancer for treatment for active cancer. The Veteran and his spouse assert that the April 2010 VA examination was inadequate because the examiner did not spend a sufficient amount of time with the Veteran and did not ask enough questions. The Board finds that the examination was adequate because its purpose was to determine whether the Veteran had active cancer and to identify the residuals of any treatment he underwent. These two findings were accurately made by the examiner. These findings were confirmed in a subsequent examination in March 2011. In sum, the preponderance of the evidence demonstrates that the reduction in rating from 100 to 0 percent for the Veteran's residuals of cancer of the larynx was proper and in accordance with Diagnostic Code 6819, which requires that it be based upon an examination. The Veteran underwent one in April 2010 and a second in March 2011. Further, his residuals were then service connected and separately rated. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.105(e), 4.97, Diagnostic Code 6819 (2012); Kitchens, 7 Vet. App. at 325. Restoration of a 100 percent rating is therefore denied. Petition to Reopen a Claim for Service Connection for Tinnitus Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In June 2008, the RO denied the Veteran's claim for service connection for bilateral tinnitus on the basis that it was not diagnosed in service and there was no current evidence that he had this condition. He did not submit a notice of disagreement and the rating decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2012). Under 38 U.S.C.A. § 7104(b), the Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. King v. Shinseki, 23 Vet. App. 464 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, "the credibility of the evidence is to be presumed." Savage v. Gober, 10 Vet. App. 488(1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is "inherently false or untrue" does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). At the time of the June 2008 denial, the record consisted of STRs and VA treatment records. Subsequently, additional VA treatment records, private medical records, and lay statements were obtained. The Veteran also underwent a VA audiology examination in January 2010. All of this evidence is new. However, it is not material. The additional medical records and lay statements do not pertain to tinnitus. At his January 2010 VA audiology examination, the Veteran reported having tinnitus "years ago," but stated that he had none in recent years. The examiner determined that there was no current complaint of tinnitus and that his last episode was "several years ago." The examiner then opined that tinnitus was not due to military service because the Veteran denied experiencing tinnitus for several years. A negative nexus opinion cannot be material because it does not raise a reasonable possibility of substantiating the claim. Villalobos v. Principi, 3 Vet. App. 450 (1992). The remainder of the new evidence does not address whether the Veteran has tinnitus or its etiology. Accordingly, the Board finds that the record contains no new and material evidence sufficient to reopen the claim for service connection for bilateral tinnitus. The claim is not reopened. 38 U.S.C.A. § 5108. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply, and the petition to reopen the claim must be denied. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Increased Evaluation for PTSD Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). See also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed); Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The diagnostic criteria set forth in The American Psychiatric Association: Diagnostic And Statistical Manual Of Mental Disorders, (4th ed. 1994) (DSM- IV) for mental disorders have been adopted by the VA. 38 C.F.R. § 4.125. The Veteran's PTSD is currently rated under Diagnostic Code 9411 as 50 percent disabling. Psychiatric disabilities other than eating disorders are rated pursuant to the criteria for General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the General Rating Formula for Mental Disorders, a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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. When it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102, Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. Under the DSM-IV, GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). GAF scores ranging between 41 and 50 are assigned when there are 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). It is important to note that a 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 DSM-IV at 32). Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The Veteran has undergone two VA examinations. In January 2010, he underwent an examination to determine whether he had PTSD. This examination was the basis of the grant of service connection for PTSD and the assignment of an initial 30 percent evaluation. At the examination, he reported flashbacks, problems sleeping, nightmares, heightened startle response, and a dislike of the sound of helicopters. He preferred to stand or sit with his back to a wall. He was upset by media coverage of the wars in Iraq and Afghanistan. He stated that he was easily irritated. During the examination, the Veteran was groomed appropriately. He had a blunt and constricted affect. His speech, thought processes, and psychomotor activity were normal. No perceptual impairments were noted. He denied suicidal and homicidal ideation. His memory and concentration were "mildly impaired," in that he had difficulty remembering remote milestones such as how long he had been married and the ages of his adult children. His judgment, insight, and impulse control were intact. He reported a good relationship with his wife of over 40 years. He had three daughters and three grandchildren and he reported getting along well with all of them. He also reported good relationships with all of his siblings. In his free time, he did charity work for his church, enjoyed watching sports on television, and going out with his wife to visit his children and grandchildren. The examiner stated that the Veteran did not appear isolative. The examiner diagnosed the Veteran with PTSD and assigned a GAF score of 53. Subsequent to his January 2010 examination, the Veteran reported an increase in the severity of his symptoms. He underwent a second PTSD examination in February 2011. He reported recently retiring from his career as a city inspector. He reported a significant exacerbation of symptoms since retirement. He thought that his additional free time left him extremely moody, irritable, and caused him to fight more with his wife. He reported a history of anger outbursts. He reported flashbacks, significant sleep impairment, heightened startle response, hypervigilance, avoidance of all cues and stimuli that evoked memories of his stressor, mood swings, anxiety, depression, recurrent intrusive thoughts and nightmares, and feeling isolated. He stated that since his retirement, his increased irritability caused him to argue with his wife every day, whereas prior to his retirement they rarely argued. The examiner agreed that the Veteran's increased free time caused an exacerbation of his symptoms. At the examination, the Veteran was alert, cooperative, and appropriately groomed. His motor activity was calm. His mood and affect were depressed and subdued. His speech and thought processes were normal. There was no evidence of perceptual impairment. He denied suicidal and homicidal ideation. His memory, concentration, and judgment were normal. The examiner found that the Veteran's impulse control was intact for the examination, but noted that the Veteran reported increasing difficulty with it at home, resulting in more arguments with his wife. The Veteran described a positive relationship with his wife and felt "very guilty" about his temper. He also described positive relationships with all of his children and grandchildren. He had positive relationships with his five siblings, with whom he was in close contact. The Veteran engaged in the same hobbies as he did at his previous examination. He did charity work for his church, watched sports on television and "tend[ed] to go out with his family." However, the examiner noted that the Veteran appeared increasingly isolative because most of his socialization was with his immediate family. He had a limited number of friends and social outlets. The examiner concluded that the Veteran's ability to engage in interpersonal relationships had decreased over the past year. The examiner found that the Veteran was independent in all of his activities of daily living. He assigned a GAF of 46. In addition to his two VA examinations, the Veteran receives VA PTSD treatment. In February 2008, he reported depression and sleep disturbance. His concentration and attention span were average. He did not have a memory deficit. His insight and judgment were "not damaged." His GAF score was 60. In February 2009 he appeared fatigued. He had poor sleep. He did not have hallucinations, suicidal ideation, homicidal ideation, and his reality testing was intact. He did not have extreme irritability, mood lability, severe anxiety, obsessions, despondency, or hopelessness. His judgment, insight, and cognition were fair. His psychomotor movements were slightly slowed due to fatigue. His GAF score was 57. In May 2009, he reported that his children were bothering him, but that he saw his grandchildren frequently. He described better sleep. The examiner made the same findings as in February 2009 regarding his symptoms. His GAF score remained 57. In September 2009 he reported that he was unhappy during his treatment session. He was troubled by the side effects from his radiation treatment for larynx cancer. He did not have hallucinations, extreme irritability, mood lability, severe anxiety, obsessions, despondency, or hopelessness. His judgment, insight, and cognition were fair. His mood was "down." His GAF score was 55. In December 2009, he did not have hallucinations, extreme irritability, mood lability, severe anxiety, obsessions, despondency, or hopelessness. His speech was normal. His mood was euthymic and tired. His psychomotor activity was slowed due to fatigue. His affect showed a diminished range. His insight, judgment, and cognition were fair. He displayed a minimal indication of impulsivity. His GAF score was 58. The Veteran did not submit lay statements describing the severity of his PTSD symptoms. Reviewing the evidence, the Board finds that a 50 percent evaluation for PTSD is appropriate for the entire appeal period, beginning on the date of his claim and effective date of service connection, July 27, 2009. Therefore, an initial 50 percent evaluation is granted for the period from July 27, 2009 to December 20, 2010. The Veteran's PTSD manifests as flashbacks, sleep disturbance, nightmares, hypervigilance, heightened startle response, irritability, depression, mood swings, and isolation from friends but not family. Since his retirement, he has experienced increased irritability resulting in poorer impulse control, causing arguments with his wife. However, the evidence does not show that he has ever been violent. Although he argues frequently with his wife, he describes their relationship as positive and feels guilt about his outbursts. He has been married to her for over 40 years. He has positive relationships with all three of his adult children, all of his grandchildren, and all of his siblings. This shows that he is capable of establishing and maintaining some interpersonal relationships. Although the February 2011 examiner found that the Veteran's ability to engage in interpersonal relationships decreased, he did not find that he was unable to establish and maintain relationships. The Veteran experienced increasing isolation from non-family members but socialized with his immediate family. He also continued to perform charity work with his church. The evidence shows that he is able to establish and maintain interpersonal relationships with difficulty. There is no evidence that he is unable to do so. The evidence does not show that the Veteran has ever had impaired judgment or any thought process or content abnormality. Although he reported feelings of anxiety and depression, the February 2011 VA examiner concluded that he was independent in all activities of daily living. There is no evidence that the Veteran has ever had difficulty maintaining personal hygiene or that he was spatially disoriented. He has never reported suicidal or homicidal ideation. At his January 2010 VA examination, the examiner noted that his memory and concentration were "mildly impaired" because he had problems remembering remote milestones, as discussed above. However, the other medical evidence of record showed that his concentration and memory were fair or intact. The description of his memory impairment does not reflect a severity more closely approximating a 70 percent evaluation. The criteria for a 50 percent evaluation address impairment of memory such that only highly learned material is retained or forgetting to complete tasks. The impairment described by the examiner does not rise to this level of severity. Reviewing the evidence, the Board finds that the overall disability picture for the Veteran's PTSD does not more closely approximate a 70 percent rating. 38 C.F.R. § 4.7. The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. The Veteran's symptoms from PTSD have not met the criteria for a rating in excess of 50 percent at any time since the effective date of his award, so the Board may not stage his rating. Fenderson, 12 Vet. App. at 125-26. To this extent, the appeal is denied. The Board has considered whether referral for an extraschedular rating is appropriate under the provisions of 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As described above, the manifestations of the Veteran's PTSD are contemplated by the schedular criteria set forth in the General Rating Formula for Mental Disorders; no examiner has reported an exceptional disability picture with symptoms not represented in the rating schedule. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extraschedular consideration is not in order. The Veteran currently has a total disability rating based on individual unemployability (TDIU) due to his service-connected disabilities. Therefore consideration of a TDIU as part of his increased evaluation claim is not warranted. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). (CONTINUED ON NEXT PAGE) ORDER Reduction of the disability rating for cancer of the larynx from 100 to 0 percent, effective November 1, 2010, was proper; therefore, restoration of a 100 percent rating is denied. As no new and material evidence has been received, the claim for service connection for bilateral tinnitus is not reopened. An initial disability evaluation of 50 percent for PTSD for the period from July 27, 2009 to December 20, 2010 is granted, subject to the laws and regulations governing the payment of monetary benefits. An initial disability evaluation in excess of 50 percent for PTSD for the period from July 27, 2009 is denied. ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs