Citation Nr: 1315734 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 09-32 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the upper extremities. 2. Entitlement to service connection for peripheral neuropathy of the lower extremities. 3. Entitlement to an increased initial evaluation for posttraumatic stress disorder (PTSD), currently evaluated as 50 percent disabling prior to April 9, 2012, and as 70 percent disabling thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from October 1967 to October 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2008 decision by the Department of Veterans Affairs (VA) Houston, Texas, Regional Office (RO), which denied claims for service connection for peripheral neuropathy of the bilateral upper and lower extremities, and which denied a claim for an increased rating for service-connected PTSD, evaluated as 50 percent disabling. The Board acknowledges that the "Appellant's Brief" prepared by the Veteran's accredited representative identifies the issues of service connection for hypertension and coronary artery disease as on appeal. With respect coronary artery disease, the RO denied service connection therefor in rating decisions dated in September 2008 and May 2011. The Board finds no document indicating disagreement or desire to appeal these decisions. With regard to service connection for hypertension, the Board finds no indication in the file that such issue has ever been adjudicated. According, the Board does not have jurisdiction over the issues of service connection for hypertension and coronary artery disease. Such issues are hereby referred to the RO for appropriate action. [Continued on Next Page] FINDINGS OF FACT 1. The evidence of record does not show that peripheral neuropathy of the left lower extremity, the right lower extremity, the left upper extremity, and the right upper extremity, are related to active duty service. 2. Prior to April 9, 2012, the Veteran's service-connected PTSD is shown to have been manifested by symptoms such as nightmares, irritability, social isolation, hypervigilance, and impaired concentration, but not to have been productive of occupational and social impairment with deficiencies in most areas and an inability to establish and maintain effective relationships. 3. As of April 9, 2012, the Veteran's service-connected PTSD is shown to have been manifested by symptoms that include nightmares, irritability, social isolation, hypervigilance, anger, and impaired concentration; but not total occupational and social impairment. CONCLUSIONS OF LAW 1. Peripheral neuropathy of the left lower extremity, the right lower extremity, the left upper extremity, and the right upper extremity, were not caused by service. 38 U.S.C.A. §§ 1110, 1116(f), 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. Prior to April 9, 2012, the criteria for a rating in excess of 50 percent for the Veteran's service-connected PTSD are not shown to have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code 9411 (2012). 3. As of April 9, 2012, the criteria for a rating in excess of 70 percent for the Veteran's service-connected PTSD are not shown to have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The issue is whether service connection is warranted for peripheral neuropathy of the bilateral upper and lower extremities. Specifically, the Veteran argues that he has peripheral neuropathy of the upper and lower extremities as a result of exposure to Agent Orange during service in Vietnam. The Board notes that the Veteran has not asserted that service connection is warranted on a direct basis, (i.e., other than as due to exposure to Agent Orange). He is not shown to have received treatment or a diagnosis for peripheral neuropathy during service. There is no competent opinion linking any peripheral neuropathy to his service, and no evidence to show that an organic disease of the nervous system was manifested to a compensable degree within one year of separation from service. See 38 C.F.R. § 3.307, 3.309 (2012). The Veteran also does not assert, and there is no evidence to show, that he has peripheral neuropathy that was caused or aggravated by a service-connected disability. Service connection for peripheral neuropathy on a direct (other than as due to exposure to Agent Orange), presumptive, or secondary basis is therefore not raised by the record. See Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008) (holding that Board commits error only in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record; Board is not required to sua sponte raise and reject "all possible" theories of entitlement in order to render a valid opinion). In general, service connection may be established for a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a pre- existing injury or disease in the line of duty. 38 U.S.C.A. § 1110. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). The statutory provision specifically covering Agent Orange is 38 U.S.C.A. § 1116 . Under 38 U.S.C.A. § 1116(f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; type 2 diabetes, non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (emphasis added). For purposes of this section, the term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e), and Note 2. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishment of service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's discharge (DD Form 214) indicates that the Veteran served in Vietnam; his awards include the Combat Infantryman Badge. Therefore, duty in the Republic of Vietnam is shown for the purposes of the regulation governing the presumption of service connection for certain diseases due to herbicides. The Veteran's service treatment reports do not show any relevant complaints, treatment, or diagnoses. As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 2000 and 2012. This evidence includes a VA EMG (electromyogram) report, dated in December 2008, which contains an impression noting that there is electrodiagnostic evidence of a generalized sensory peripheral neuropathy to the lower extremities and the upper extremities. An associated December 2008 VA progress note similarly notes a referring diagnosis of peripheral neuropathy, and that the Veteran had reported a 7-year history of a burning sensation to the bilateral feet with associated numbness. He also reported difficulty walking and falling asleep due to pain, and having numbness of the hands. The Board finds that the claim must be denied. A chronic condition is not shown during service. See 38 C.F.R. § 3.303. As previously indicated, the Veteran was not treated for neuropathy of the upper or lower extremities during service, nor is an organic disease of the nervous system involving the upper or lower extremities shown to have been manifested to a compensable degree within one year of separation from service. See 38 C.F.R. § 3.307, 3.309. The Veteran's primary argument is that he has peripheral neuropathy of his extremities due to exposure to Agent Orange. Although the Veteran is shown to have served in Vietnam, and is therefore presumed to have been exposed to Agent Orange, the Veteran is not shown to have been diagnosed with "acute" or "subacute" peripheral neuropathy that manifested to a degree of 10 percent or more within one year of service in the Republic of Vietnam. Therefore, service connection for either claimed disability is not warranted under the presumptive provisions. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e); see also 59 Fed. Reg. 341 (Jan. 4, 1994); 61 Fed. Reg. 41442 (Aug. 8, 1996) (The Secretary of VA has formally announced that a presumption of service connection based on exposure to herbicide exposure in Vietnam is not warranted for certain conditions including leukemia or "any . . . condition for which the Secretary has not specifically determined a presumption of service connection is warranted."). There is no competent evidence to show that he has peripheral neuropathy that was caused by such exposure. Combee. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. In summary, the evidence does not show that the Veteran has peripheral neuropathy of the bilateral upper or lower extremities that is related to his service. The Board therefore finds that the service and post-service record (overall) provides evidence against these claims, outweighing the appellant's statements, and the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied. Although it is error to categorically reject a non-expert nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the Federal Circuit drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In that earlier decision, the Federal Circuit stated as follows: "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Also of note is that the Veterans Court has explained that non-expert witnesses are competent to report only that for which they have personal knowledge that comes to the witness through the use of his or her own five senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus opinion could be rendered based only on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. The issue on appeal is based on the contention that peripheral neuropathy of the upper and lower extremities has been caused by exposure to Agent Orange during service. The board reiterates that 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 or not the Veteran has peripheral neuropathy of the upper or lower extremities that is related to exposure to Agent Orange, falls outside the realm of common knowledge of a lay person. Jandreau. In this case, the Veteran's service treatment reports and post-service medical records have been discussed. There is no competent opinion of record in support of the claim, and service connection is not warranted on a presumptive basis. Given the foregoing, the Board finds that the service treatment reports, and the post-service medical evidence, outweigh the Veteran's contention to the effect that peripheral neuropathy of the lower and upper extremities was caused by his service. Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied. The Board has considered the applicability of "benefit of the doubt" doctrine, however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of these matters on that basis. 38 U.S.C.A. § 5107(b). II. Increased Rating - PTSD The Veteran asserts that he is entitled to an increased rating for his service-connected PTSD. He argues that he has impairment in such areas as panic attacks, temper flare-ups, and difficulty in stressful situations, and that he cannot work due to his symptoms. See Veteran's appeal (VA Form 9), received in August 2009. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In September 2001, the RO granted service connection for PTSD, evaluated as 50 percent disabling, with an effective date for service connection of October 23, 2000. There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012). On July 27, 2007, the Veteran filed a claim for an increased rating. In February 2008, the RO denied the claim. The Veteran appealed. In January 2013, the RO granted the claim, to the extent that it increased the Veteran's rating for PTSD to 70 percent, with an effective date for the 70 percent rating of April 9, 2012. Since this increase did not constitute a full grant of the benefits sought, the increased rating issue remained in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). Given the foregoing, appeal period is from July 27, 2006 to the present, see 38 C.F.R. § 3.400(b)(1) (2012), and the issue may be stated as whether the criteria for an evaluation in excess of 50 percent for PTSD have been met prior to April 9, 2012, whether the criteria for an evaluation in excess of 70 percent have been met thereafter. The Board notes that in January 2013, the RO granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), effective April 9, 2012. The RO has evaluated the Veteran's PTSD under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Under DC 9411, Under DC 9411, a 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, 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). Id. A 50 percent rating is warranted where the disorder is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks (more than once a week); difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where there is 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 ideations; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent schedular evaluation is warranted when there is 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 of names of close relatives, own occupation, or own name. Id. The Global Assessment of Functioning (GAF) scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994). GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). GAF scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. See Quick Reference to the Diagnostic Criteria from DSM-IV at 47 (American Psychiatric Association 1994) ("QRDC DSM-IV"). Although some of the Veteran's recorded symptoms are not specifically provided for in the ratings schedule (e.g., such symptoms as nightmares), the symptoms listed at 38 C.F.R. § 4.130 are not an exclusive or exhaustive list of symptomatology which may be considered for a higher rating claim. Mauerhan v. Principi, 16 Vet. App. 436 (2002). With regard to the history of the disability in issue, see 38 C.F.R. § 4.1 (2012), the Veteran's discharge (DD Form 214) shows that he served in Vietnam, and that his awards include the Combat Infantryman Badge. There is no relevant evidence of treatment during service, or until July 2001, at which time he was first diagnosed with PTSD, and assigned a GAF score of 62. The only other relevant medical evidence is a May 2003 VA progress note, which shows that he complained of having a bad temper that resulted in problems at his job. A. Prior to April 9, 2012 The relevant evidence during the time period in issue consists of VA and non-VA reports, summarized as follows: A VA progress note, dated in January 2007, notes that the Veteran had not been seen for psychiatric treatment since 2003. He reported being terminated at his job in August 2006, and the report notes that it was unclear whether his PTSD symptoms had played a role in his termination. He complained of poor sleep (4 to 41/2 hours per night) and worsening symptoms, to include occasional decreased concentration and/or decreased productivity in carrying out such goal-directed tasks as looking for a new job, making appointments, and ADLs (activities of daily living). The report notes that there was no intermittent suicidal ideation, no significant weight changes, no significant crying spells, and that he had a 2-to-3 year history of "no-shows" for psychiatric treatment, although he had good attendance for IMC and dermatology appointments. The report indicates that the Veteran had nightmares three to five times per week, and that he had issues with controlling anger, distrust of others, avoidance behaviors, trouble socializing, but did not have audio or visual hallucinations. On examination, he was awake and oriented times four (person, place, time and date). Immediate, recent, and remote memory were intact. Concentration was "okay," and mood was mildly dysthymic with reduced range but normal to increased intensity of affect. There was inappropriate affect. Thought processes were coherent, logical, goal-directed, and without flight of ideas, looseness of associations, tangentiality, or circumstantiality. Thought content revealed no SI (suicidal ideation), HI (homicidal ideation), or directed PI (paranoid ideation), nor any other delusions nor ideas of reference. The Axis I diagnosis was chronic PTSD. The Axis V diagnosis was a GAF score of 53, with a high for the past year estimated at 59, and the lowest for the past year estimated at 48. Psychotropic medication was recommended to stabilize mood and for nightmare suppression. Group or individual therapy was also to be continued, with follow-up in three months. A July 2007 VA progress note notes variable depressive symptoms with his job search having resulted in an interview. He reported feeling somewhat less depressed, with moods lasting less than half a day. He reported getting five to six hours of sleep per night, and moderate anxiety in the daytime without panic symptoms or social phobia, which had improved somewhat with Buspar. The report notes that his PTSD symptoms are improved. The Axis I diagnosis was chronic PTSD. The Axis V diagnosis was a GAF score of 62, with a high for the past year estimated at 62, and the lowest for the past year estimated at 48. Psychotropic medication was recommended to stabilize mood and for nightmare suppression. Group or individual therapy was also to be continued, with follow-up in three months. An August 2007 VA progress note shows that the Veteran complained of being irritable and cranky "due to losing his job, the reasons behind the firing and his inability to get a job." He reported exercising daily, working around the house, and refereeing volleyball games at a high school. He complained of boredom, and isolating himself, and a quick temper. He denied current active or passive suicidal or homicidal ideation. He reported elevated anxiety, and nightmares once or twice a week. He denied all psychotic symptoms, and symptoms of a bipolar, manic-like episode. He was noted to be future-oriented, and goal-directed. His speech had a normal rate, volume and clarity. He was awake and oriented times three (person, place and time), and recent and remote memory were intact. Judgment and insight were average. The Axis I diagnoses were PTSD, and depression NOS (not otherwise specified). The Axis V diagnosis was a GAF score of 55. A QTC examination report, dated in October 2007, shows that the examiner indicated that the Veteran's post-service medical records had been reviewed. The Veteran complained of sleep disturbance, depression, anxiety, irritability, concentration difficulties, exaggerated startle response, and a sense of foreshortened future, which varied in intensity and frequency. The Veteran complained that he had few relationships, and that he had no interest in social functions. The effect on his total daily functioning was moderate. He reported receiving treatment once a month, with "average" response. He stated that following service, he had worked in a civil service job for 30 years, with fair relationships with co-workers, and a poor relationship with supervisors. He stated that he was currently working as a volleyball referee, part-time, which he had been doing for 25 years. He had not lost any time from work. On examination, orientation was within normal limits. Appearance, hygiene, and behavior were appropriate. Affect and mood were abnormal with disturbance of motivation and mood. Communication, speech and concentration were all within normal limits. There were no panic attacks, and there was no history of delusions or hallucinations, nor were these symptoms present upon examination. There were no obsessional rituals. Thought processes were appropriate. Judgment was not impaired. Suicidal and homicidal ideation were absent. There was sleep disturbance, irritability, depression, anxiety, a sense of foreshortened future, reduced interest and motivation in activities, and increasing isolation and feelings of detachment. The Axis I diagnoses were PTSD, and alcohol abuse. The Axis V diagnosis was a GAF score of 55. The examiner stated that the Veteran did not have difficulty performing the activities of daily living, but that he had difficulty establishing and maintaining effective work, school and social relationships because of increasing isolation and feelings of detachment. The Veteran had difficulty maintaining effective family role functioning because of mood disturbance. He had an intermittent ability to perform recreation or leisurely pursuits because of a significantly reduced interest and motivation in activities. He has no difficulty understanding commands. He posed no threat of injury to himself or to others. An April 2008 VA progress note shows that the Veteran reported that he was retired, but looking for a job, and that he was doing well. The report indicates that the Veteran's sleep and appetite were good, and that he exercised by walking and jogging at the track. On examination, he had good hygiene. Speech was normal, and his thought processes were logical and goal-directed. There was no suicidal or homicidal ideation, or psychosis. He was awake and oriented times three. Insight and judgment were intact. The Axis I diagnoses were stable PTSD, and stable depression NOS. The Axis V diagnosis was a GAF score of 70. A June 2008 VA progress note shows that the Veteran reported that he was retired after 29 years, and that he had then gone to work for a contractor at his former place of employment, but that he had been laid off due to a "bad temper" after three years. The report notes that there was no history of suicidal gestures or attempts, and no history of violent or homicidal ideation, although he had made "terroristic threats" and gotten into legal problems as a result. He denied a history of actual violence. He reported a history of three marriages, and that he had been married to his third wife for 22 years, with a "satisfactory" marriage. He reported attending church regularly, and that he enjoyed golfing and fishing, although he didn't do those activities as much as he used to. He complained of insomnia, with no recent nightmares. His energy and activity levels were noted to be within normal limits. Speech was coherent and relevant. He denied current suicidal or homicidal ideation. He had a poor memory for dates and timeframes. Mood was depressed and angry. Judgment was adequate. Insight was minimal to none. The Axis I diagnoses were PTSD, and depression NOS (not otherwise specified). The Axis V diagnosis was a GAF score of 60. An August 2008 VA progress note indicates that the Veteran's sleep and appetite were good, and that he exercised by walking and jogging at the track. On examination, speech was normal, thought processes were logical and goal-directed. There was no suicidal or homicidal ideation, or psychosis. He was awake and oriented times three. Insight and judgment were intact. The Axis I diagnoses were stable PTSD, and stable depression NOS. The Axis V diagnosis was a GAF score of 70. A QTC examination report, dated in September 2008, indicates that the examiner reviewed the Veteran's post-service treatment reports. The Veteran complained of constant decreased sleep and increased stress. He stated that his relationship with his wife was good. He reported he had no relationship with his two oldest children, and that his relationship with his two youngest children was fair. He was noted to be taking Mirtazapine, and Topiramate, with good response to both. He reported that he had not had psychotherapy during the past year, and that he did not have a history of hospitalization or emergency room visits for psychiatric reasons. The examiner stated that he did not have any symptoms where he re-experiences the traumatic events. On examination, orientation was within normal limits. Appearance, hygiene, and behavior were appropriate. Affect and mood were normal. Communication and speech were within normal limits. He had difficulty staying focused. He complained of near-continuous panic attacks (which he described as "my heart beats fast") that did not affect his ability to function independently. There were no delusions, nor was there a history of delusions. He reported occasional visual hallucinations. There were obsessional rituals that were not severe enough to interfere with routine activities. Thought processes were appropriate. Judgment was not impaired. There was severe memory impairment. Suicidal and homicidal ideation were absent. He had isolation, irritability, panic, anxiety, and decreased sleep. The Axis I diagnosis was PTSD. The Axis V diagnosis was a GAF score of 60. The examiner stated that the Veteran did not mentally have difficulty performing his activities of daily living. He was able to establish and maintain effective work, school, and social relationships. He was able to maintain effective family role functioning. He was unable to perform recreation or leisurely pursuits because he was unable to be around people. He has no difficulty understanding commands, and he did not pose a threat of danger or injury to himself or to others. A September 2008 VA progress note shows that the Veteran complained of worsening anxiety over the last three weeks, during performances as a volleyball referee, which usually lasted throughout the game, about four hours. The findings are essentially similar to those in the August 2008 VA progress note. The report contains a GAF score of 69. A November 2008 VA progress note shows that the Veteran reported a big difference in his anxiety following use of Klonopin, which he used in association with his work as a referee, and that he had been able to perform well at a game a few days before. He reported that his sleep and appetite were both fine, that he did not have any nightmares, and that he was not depressed. He reported that his work as a referee was part-time and temporary. The findings are essentially similar to those in the August 2008 VA progress note. The report contains a GAF score of 69. VA progress notes, dated in March, June and July of 2009, show that the Veteran complained of symptoms that included anger, anxiety and depression. In March 2009, he reported that he was working part-time as a referee. On examination, he was alert and oriented times four. There was no suicidal or homicidal ideation. The July 2009 report shows that he reported that he had not been taking his medications since last year due to his reluctance to take medications, and because he also did not like the way one of his medications made him feel. He reported exercising three times per day, and stated that he would be refereeing next month. The report contains a GAF score of 69. An August 2009 VA progress note shows that the Veteran reported improvement in sleep and anxiety. He stated that he coaches a women's volleyball team. He was noted to be partially controlled on his current therapy. An October 2009 VA progress note shows that the Veteran complained of a dispute while refereeing a volleyball game, and that a VA employee had hung up on him. A November 2009 VA progress note shows that the Veteran was noted to be taking Sertraline and clonazepam. He complained of an exacerbation of anxiety and sleep disturbances due to problems with his son. On examination, he was anxious, with appropriate affect. He was awake and oriented times three. He denied audio or visual hallucinations, delusions, ideas of reference, and suicidal or homicidal ideation. He was noted to be partially controlled on current therapy, with a generally declining condition. VA progress notes, dated between 2010 and 2012, show ongoing treatment for psychiatric symptoms. They contain notations that he was generally stable and doing well, with no outbursts for several weeks (February 2011), that he was controlled and stable (October 2011), and that he denied depression or anxiety (March 2012). A request for employment information (VA Form 21-4192) from the Veteran's former employer, between July 2003 and August 2006, received in August 2008, shows that the employer stated that the Veteran had been terminated due to a reduction in force. The Board finds that prior to April 9, 2012, an evaluation in excess of 50 percent is not warranted. The Veteran's symptoms are not shown to be sufficiently severe to have resulted in occupational and social impairment, with deficiencies in most areas, and the Board has determined that the preponderance of the evidence shows that the Veteran's PTSD more closely resembles the criteria for not more than a 50 percent rating. The findings as to the Veteran's speech, thought processes, insight, and judgment, and memory, are not shown to be sufficiently severe to warrant an increased rating. In this regard, his GAF scores cover a wide range, between 48 and 70. However, the two scores of 48 are included in estimates for the past year made in January and July of 2007, and they are accompanied by estimated highs of 59 and 62. With regard to the other GAF scores for the year 2007, four of the five scores (53, 55, 55, and 57) indicate no less than moderate symptoms. See QRDC DSM-IV. There is also a July 2007 GAF score of 62, which indicates only some mild symptoms. Id. Furthermore, the subsequently-dated GAF scores are all no less than 60, indicating no less than moderate symptoms, and they include two scores of 70, indicating only mild symptoms. Id. The QTC examination reports show essentially unremarkable orientation, appearance, hygiene, behavior, thought processes, and judgment, communication and speech. There were no panic attacks or delusions, and suicidal and homicidal ideation were absent. The reports contain GAF scores of 55 and 60, which is evidence of moderate to mild symptomatology. The October 2007 report shows that the examiner stated that the Veteran did not have difficulty performing the activities of daily living, but that he had difficulty establishing and maintaining effective work, school and social relationships because of increasing isolation and feelings of detachment. The September 2008 report shows that the examiner stated that the Veteran was able to establish and maintain effective work, school, and social relationships. With regard to the VA progress notes, they tend to show that the Veteran had good hygiene, with normal speech, logical and goal-directed thought processes, intact insight and judgment, and that there was no suicidal or homicidal ideation, or psychosis. The evidence shows that the Veteran attends church and retreats, and that although he has had some problems, he referees sporting events as a part-time job, and he has stated that he coaches a volleyball team. The evidence is insufficient to show such symptoms as suicidal ideation, obsessional rituals that 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, spatial disorientation, or neglect of personal appearance and hygiene, nor are the other PTSD symptoms shown to have resulted in the required impairment. See Vazquez-Claudio v. Shinseki, 2012-7114 (Fed. Cir. Apr. 8, 2013) (38 C.F.R. § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas). The Board therefore finds that the Veteran's symptoms are not of such severity to approximate, or more nearly approximate, the criteria for a rating in excess of 50 percent under DC 9411 prior to April 9, 2012. See 38 C.F.R. § 4.7. B. As of April 9, 2012 VA progress notes show that the Veteran received a number of treatments for psychiatric symptoms. They contain notations that he had increased symptoms of anxiety and depression, that he was declining and not well-controlled, that he was sleeping five to six hours per night, that he denied nightmares, and flashbacks, and that he was not taking his medications (April 2012), that he was feeling better, with controlled symptoms, and was generally improving (May and August of 2012), that he was starting to referee again (August 2012), and that he was a negative suicide risk (October 2012). A disability benefits questionnaire, (DBQ) completed by a private physician, Dr. R.K., dated in April 2012, indicates that the Veteran was examined on April 9, 2012. The DBQ shows that the Veteran's claims file had been reviewed. The Veteran complained of sleep impairment, and memory impairment. He stated that he had not worked since 2006. He complained that he was making errors as a referee, and as a score board monitor for soccer games. He stated that he went to church, and to retreats, but that he liked to be alone and that he didn't like to be around family members. He stated that he had quit going to therapy about six months before because it wasn't helping. It was noted that the Veteran's symptoms were depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a worklike setting. Dr. R.K. stated that the Veteran's diagnoses were PTSD, alcohol abuse, and depressive disorder NOS. The Axis V diagnosis was a GAF score of 50. Dr. R.K. stated that the Veteran's symptoms had resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. A disability benefits questionnaire, (DBQ) completed by a private physician, Dr. R.K., dated in June 2012, shows that the Veteran's claims file had been reviewed. Dr. R.K. concluded that the Veteran was unemployable due to PTSD. The Board finds that as of April 9, 2012, a rating in excess of 70 percent is not warranted. As an initial matter, although a TDIU is in effect as of this date, the criteria for TDIU are not identical to those under DC 9411. See 38 C.F.R. § 4.16 (2012). The findings in such areas as the Veteran's memory, judgment, insight, thought processes, speech, orientation, and hygiene, and the lack of evidence of such symptoms as suicidal ideation or homicidal ideation, delusions, or hallucinations, or other psychotic symptoms, do not warrant the conclusion that the criteria for a rating in excess of 70 percent have been met. In this regard, there is no evidence to show that his symptoms are productive of gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting oneself or others, intermittent inability to perform activities of daily living, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name, nor are any other PTSD symptoms shown to have resulted in such impairment. Vazquez-Claudio v. Shinseki. The April 2012 DBQ shows that the Axis V diagnosis was a GAF score of 50, which is evidence of severe symptoms. However, the examiner concluded that the Veteran's symptoms had resulted in occupational and social impairment with deficiencies in most areas, and this corresponds to no more than a 70 percent rating. 38 C.F.R. § 4.130. The Board therefore finds that the Veteran's symptoms are not of such severity to approximate, or more nearly approximate, the criteria for a rating in excess of 70 percent under DC 9411 as of April 9, 2012. See 38 C.F.R. § 4.7. C. Conclusion The Board acknowledges that the appellant has asserted that his PTSD disability has been more severe than the assigned disability ratings reflect. He maintains that he experiences problems with his work and daily activities that are due to the PTSD disability, to include being laid off from his job. Lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009). The Board has carefully considered the Veteran's contentions. In this case, however, the competent medical evidence and clinical findings comporting with the applicable rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the PTSD disability on appeal. See Massey v. Brown, 7 Vet. App. 204, 208 (1994) (generally, the Board has been directed to consider only those factors contained wholly in the rating criteria). The clinical assessments of record are considered persuasive as to the appellant's degree of impairment due to PTSD, since they consider the overall industrial impairment due to his psychiatric illness. The statements of the Veteran have also been considered together with the probative medical evidence clinically evaluating the severity of the PTSD disability symptoms. To the extent that the Veteran has asserted that his PTSD has resulted in his being laid off, there is no relevant evidence in the record from the Veteran's employer establishing that his PTSD is the cause of this. The Board further points out that any actions by his supervisors in relation to his behavior would be considered less probative of the issue on appeal than the medical evidence pertaining to the severity of his symptoms. Neither the lay nor the clinical evidence provides a basis for the assignment of a rating in excess of 50 percent for PTSD prior to April 9, 2012, or a rating in excess of 70 percent as of April 9, 2012, as the findings needed for the next higher evaluations are not demonstrated. As such, the Board finds that the preponderance of the evidence is against the assignment of an evaluation in excess of 50 percent for the period prior to April 9, 2012, and for a rating in excess of 70 percent thereafter. Accordingly, the claim must be denied. Consideration has been given to whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2012); Thun, 22 Vet. App. at 116. The schedular evaluation in this case is not inadequate. An evaluation in excess of 70 percent is provided for certain manifestations of the service-connected PTSD disability, but the evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability, as the criteria assess the level of occupational and social impairment attributable to the Veteran's symptoms. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, referral for consideration of an extra-schedular rating is not warranted. In deciding the Veteran's increased rating claim, the Board has considered the determination Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that either of the Veteran's ratings should be increased for any other separate period based on the facts found during the whole appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to increased compensation during any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the disability on appeal such that an increased rating is warranted. For all claims, in reaching these decisions, the Board considered the benefit- of-the-doubt rule; however, as the preponderance of the evidence is against the appellant's claims, such rule is not for application. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103 , 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The notification obligations in this case were accomplished by way of letters from the RO to the Veteran dated in October 2007 (service connection), and August 2008 (increased rating claim). Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO has provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA and non-VA medical records. For the Veteran's increased rating claim, the Veteran has been afforded two examinations. The Board concludes, therefore, that decisions on the merits at this time do not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). With regard to the claims for peripheral neuropathy, the Veteran has not been afforded an examination, and etiological opinions have not been obtained. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifest during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The Veteran's service treatment reports do not show any relevant complaints, treatment, or findings, providing evidence against the claims, and there is nothing to show that an organic disease of the nervous system, or acute or subacute peripheral neuropathy, was manifested to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309 (2012). Therefore, the second McLendon criterion is not satisfied. With regard to the third McLendon criterion, the earliest medical evidence of peripheral neuropathy is dated no earlier than 2008, which is about 39 years after separation from service, and there is no competent evidence to show that peripheral neuropathy of the upper or lower extremities is related to service. Therefore, an examination and an etiological opinion need not be obtained. McLendon; see also 38 C.F.R. § 3.159(c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs