Citation Nr: 1322062	
Decision Date: 07/10/13    Archive Date: 07/18/13

DOCKET NO.  06-28 829	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to an annual clothing allowance pursuant to 38 U.S.C.A. § 1162 for 2011.

2.  Entitlement to service connection for a left elbow disability. 

3.  Entitlement to service connection for an acquired psychiatric disability, other than major depressive disorder.  

4.  Entitlement to service connection for hypertension, to include secondary to service-connected major depressive disorder.

5.  Entitlement to service connection for tinnitus, to include as secondary to medicine taken for service-connected degenerative joint disease of the lumbar spine and left foot plantar keratosis.

6.  Entitlement to an initial evaluation in excess of 20 percent for degenerative joint disease of the lumbar spine.

7.  Entitlement to an evaluation in excess of 50 percent for major depressive disorder.

8. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. Jeng, Counsel


INTRODUCTION

The Veteran had active military service from January 1991 to March 1991 and active duty for training (ACDUTRA) from December 1984 to June 1985, with additional service in the National Guard.

This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  In a March 2006 rating decision, the RO granted service connection for degenerative joint disease of the lumbar spine and assigned a 20 percent disability evaluation.  In a November 2008 rating decision, the RO denied service connection for hypertension and continued the 50 percent disability evaluation for major depressive disorder.  In November 2009, the RO, in part, denied service connection for tinnitus.  Additionally, in a November 2011 decision, the VA Medical Center (VAMC) in Oklahoma City denied a claim for an annual clothing allowance.  In October 2012, the Veteran presented testimony in a travel board hearing before the undersigned with respect to the issue of an annual clothing allowance.  

Most recently, in an April 2012 rating decision, the RO, in part, denied service connection for a left elbow disability and anxiety.  The RO notified the Veteran of this decision in an April 12, 2012, letter.  The Veteran filed a timely notice of disagreement (NOD) with respect to these issues in June 2012 and a statement of the case was issued in December 2012.  Although the Veteran and his representative did not file a VA Form 9, Appeal to Board of Veterans' Appeals, the representative indicated that the Veteran was appealing these issues in an April 2, 2013, informal hearing presentation.  The Boards will accept the April 2013 report as a timely appeal, in lieu of a formal VA Form 9.  See 38 C.F.R. § 20.200 (2012) (an appeal to the Board consists of a timely filed NOD in writing and, after a statement of the case (SOC) has been furnished, a timely filed Substantive Appeal (e.g., a VA Form 9 or equivalent statement)); 38 C.F.R. § 20.202 (2012) (a substantive appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information); 38 U.S.C.A. § 7105(a), (b)(1) (West 2002); 38 C.F.R. 
§ 20.302 (2012) (as a general rule, a Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the SOC to the appellant or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later, to perfect an appeal of any claim adjudicated by the RO). 

In April 2010 and December 2010, the Board remanded these claims for additional development.  Development has been completed and the case has been returned to the Board for appellate consideration.  

The United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled.  See Clemons v. Shinseki, 23 Vet App 1 (2009).  In this case, although the Veteran's service connection claim was specifically developed for anxiety disorder, the Board has considered the Veteran's claim for all possible psychiatric disorders (other than major depressive disorder for which he is already service-connected) and has recharacterized the issue as reflected on the first page of this document.  

The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record.  In this case, the RO denied entitlement to a TDIU in an April 2012 rating decision.  However, in the April 2013 informal hearing presentation, the Veteran's representative contended that the Veteran was entitled to a TDIU.  Therefore, the issue of a TDIU is properly before the Board.     

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims.  The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision.

Since the Veteran's claims were last adjudicated in various SSOCs in June 2011, 
the Board received additional pertinent evidence.  This evidence has not been reviewed by the agency of original jurisdiction.  However, in the April 2013 informal hearing presentation, the Veteran's representative specifically indicated that the Veteran was waiving this procedural right.  38 C.F.R. §§ 19.37, 20.1304 (2012).  Thus, the Board will consider the newly submitted evidence in the first instance.

The issues of service connection for a left elbow disability, an acquired psychiatric disability, and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

1.  The Veteran is currently service-connected for degenerative joint disease of the lumbar spine. 

2.  The Veteran's service-connected lumbar spine disorder is managed with the use of a back brace, which has resulted in wear and tear of the Veteran's clothing.  

3.  The Veteran has been in receipt of a clothing allowance every year since 2005 to 2012, with the exception of 2011. 

4.  The Veteran is entitled to a clothing allowance for 2011. 

5.  Tinnitus is not related to active service or a service-connected disability. 

6.  Prior to April 12, 2011, the Veteran's degenerative joint disease of the lumbar spine was manifested by flexion limited at most to 40 degrees, but not by any incapacitating episodes of intervertebral disc syndrome.  The record for this period does not show compensable neurological disabilities associated with the lumbar spine disability.

7.  Beginning April 12, 2011, the Veteran's degenerative joint disease of the lumbar spine was manifested by flexion limited to 30 degrees, but not by unfavorable ankylosis of the entire thoracolumbar spine or any incapacitating episodes of intervertebral disc syndrome.  The record for this period does not show compensable neurological disabilities associated with the lumbar spine disability.

8.  Prior to February 15, 2011, the Veteran's major depressive disorder was not manifested by suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; or other symptoms on par with the level of severity contemplated herein. 
9.  Beginning February 15, 2011, the Veteran's major depressive disorder has been manifested by hallucinations; suicidal ideation; marked problems with memory, concentration, judgment, activities of daily living; neglect of personal appearance and hygiene; obsessional rituals; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (e.g. spontaneous rage); difficulty in adapting to stressful circumstances; and an inability to establish and maintain effective relationships.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to an annual clothing allowance for the 2011 calendar year have been met.  38 U.S.C.A. §§ 1162, 5107 (West 200); 38 C.F.R. 
§§ 3.102, 3.810 (2012).

2.  Tinnitus is not proximately due to or the result of a service-connected disability, and was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012).

3.  Prior to April 12, 2011, the criteria for an initial evaluation in excess of 20 percent for degenerative joint disease of the lumbar spine were not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2012).

4.  Beginning April 12, 2011, the criteria for an evaluation of 40 percent, but not higher, for the Veteran's degenerative joint disease of the lumbar spine are met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2012).

5.  Prior to February 15, 2011, the criteria for an evaluation in excess of 50 percent for major depressive disorder were not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130 Diagnostic Code 9434 (2012).

6.  Beginning February 15, 2011, the criteria for an evaluation of 70 percent, but not higher, for the Veteran's major depressive disorder are met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130 Diagnostic Code 9434 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Stegall Considerations

As noted above, the Board remanded these matters on two occasions.  In April 2010, the Board instructed the AMC/RO to readjudicate the Veteran's claims of service connection for hypertension, and increased evaluations for lumbar spine disability and major depressive disorder.  Subsequently, in July 2010, the RO readjudicated these issues in various SSOCs.  Then in December 2010, the Board remanded the issues again to obtain employment records, provide the Veteran with examinations for his hypertension, lumbar spine disability, and tinnitus, and to readjudicate the claims.  Pursuant to the Board's remand, the RO/AMC obtained the Veteran's employment records, provided him the pertinent examinations in June 2011, and readjudicated his claims in various SSOCs in June 2011.  Thus, there is compliance with the Board's remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).

Duties to Notify and Assist

As to the claim for a clothing allowance, the Board is granting the Veteran's claim in full.  Accordingly, there is no need to discuss whether there has been compliance with the duties to notify and assist because even if for the sake of argument there has not been, this is ultimately inconsequential and, therefore, at most harmless, i.e., non-prejudicial error.  38 C.F.R. § 20.1102 (2012); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

With regard to the remaining issues, in correspondence dated in June 2004, prior to the March 2006 rating decision; June 2008, prior to the November 2008 rating decision; September 2008, prior to the November 2008 rating decision; and October 2009, prior to the November 2009 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012).  Specifically, the RO notified the Veteran of information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide.  The September 2008 letter informed the Veteran that in order to establish a higher rating for major depressive disorder, the evidence would need to show that his disability had increased in severity.  He was informed of the type of evidence that could be submitted to support his increased rating claim.  Additionally, the June 2008, September 2008, and October 2008 letters notified the Veteran of the process by which initial disability ratings and effective dates are established as set forth in Dingess v. Nicholson,19 Vet. App. 473 (2006).  

The June 2004 letter provided the Veteran with the notice required for the initial claim of service connection for a lumbar spine disability.  Service connection was subsequently granted, and the Veteran appealed the initial rating assigned.  In cases such as this, where service connection has been granted and an initial disability rating and effective date has been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. 
§ 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  The Veteran bears the burden of demonstrating any prejudice from defective (or nonexistent) notice with respect to the downstream elements.  Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  That burden has not been met in this case, as neither the Veteran nor his representative has alleged such prejudice. 

VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012).  All identified and available treatment records have been secured.  As the Board will discuss in detail in the analysis below, the Veteran was provided with multiple VA examinations during the appeal period.  A review of the  VA examination reports reflects that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate  evaluations of the Veteran, rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and provided sufficient information to evaluate the disabilities.  Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his service-connected spine or major depressive disorder since he was last examined, respectively, in October 2011 and May 2012.  See 38 C.F.R. § 3.327(a) (2012).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See VAOPGCPREC 11-95 (April 7, 1995).  The Board concludes that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal.  See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Veteran and his representative have not contended otherwise.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c) (4) (2012); Barr, 21 Vet. App. at 312.

Also, the Board observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2012).  In December 2009, the Veteran withdrew his request to provide testimony with regard to the claims addressed herein before a Veterans Law Judge.  Therefore, the duties to notify and assist have been met.   

Clothing Allowance

The law provides for payment of an annual clothing allowance for each veteran who, because of a service-connected disability, wears or uses a prosthetic or orthopedic appliance (including a wheelchair) which the VA determines tends to wear out or tear the clothing of the veteran, or uses medication which a physician has prescribed for a skin condition which is due to a service-connected disability and the VA determines causes irreparable damage to the veteran's outer garments. 38 U.S.C.A. § 1162 (West 2002).

Under 38 C.F.R. § 3.810, a veteran who has a service-connected disability is entitled, upon application therefore, to an annual clothing allowance as specified in 38 U.S.C.A. § 1162.  The annual clothing allowance is payable in a lump sum, and the following eligibility criteria must also be satisfied:

(1) a VA examination or examination report from a private physician as specified in 38 C.F.R. § 3.326(c) discloses that the veteran wears or uses certain prosthetic or orthopedic appliances which tend to wear or tear clothing (including a wheelchair) because of such disability; or

(2) the Chief Medical Director or designee certifies that because of the use of a physician-prescribed medication for a skin condition which is due to the service-connected disability, irreparable damage is done to the veteran's outer garments. 
38 U.S.C.A. § 1162 (West 2002); 38 C.F.R. § 3.810(a) (2012).

Effective August 1, 1972, the initial lump-sum clothing allowance is due and payable for veterans meeting the eligibility requirements of paragraph (a) of this section as of that date (that is, as of August 1).  Subsequent annual payments for those meeting the eligibility requirements of paragraph (a) of this section will become due on the anniversary date thereafter, both as to initial claims and recurring payments under previously-established entitlement.  38 C.F.R. § 3.810(b) (2012).

38 C.F.R. § 3.810 further states that except as provided in paragraph (c)(2) of this section, the application for clothing allowance must be filed within 1 year of the anniversary date (1 August) for which entitlement is initially established, otherwise, the application will be acceptable only to effect payment of the clothing allowance becoming due on any succeeding anniversary date for which entitlement is established, provided the application is filed within one year of such date.  The one-year period for filing application will include the anniversary date (August 1) and terminate on July 31 of the following year.  38 C.F.R. § 3.810 (c)(1) (2012).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, then VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012) .
The Veteran is service-connected for several disabilities, including a lumbar spine disability, for which he was prescribed, by VA, a back brace in 2005.    

In the February 2012 Statement of the Case, the VAMC noted that it was denying the Veteran's claim for a clothing allowance because the Veteran had not received a back brace since October 2007.  

The Veteran indicated in his November 2011 NOD that he wore his back brace daily and as needed, and was unaware of the time frame for replacing it.  He stated that his brace still wore out his garments but he would replace it with a belt.  On the NOD is a handwritten notation, which was later identified as being added by the adjudicator or prosthetics chief, that if the brace had been worn daily it would not last 4 years.  See October 2012 Hearing Transcript, page 4.  

According to the Veteran's testimony at the October 2012 hearing, he had been in receipt of a clothing allowance every year since 2005 including 2012, except for 2011.  The Veteran indicated that he was not aware that he needed to apply for a back brace every couple of years in order to receive his clothing allowance, and that he continued to use the same one he had even though it wore out his clothes.  He testified that he took special care of his back brace, which extended its use. 

Based on the evidence of record, the Board finds that the Veteran was in need of a clothing allowance for use of his back brace in 2011.  Although he was unaware of the need to apply for a back brace periodically, there is no evidence that he was not using the back brace.  The record supports the Veteran's contentions of using his brace regularly and further includes evidence supporting the conclusion that such brace is the type that would be likely to result in wear and/or tear on the Veteran's clothing.  Notably, the fact that the Veteran was in receipt of a clothing allowance every year other than the one in question bolters his assertion.  There is no contrary evidence in the claims file.  Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to an annual clothing allowance for the 2011 calendar year.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. 
§ 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Tinnitus

The Veteran claims that his tinnitus is directly due to noise exposure during active duty, or is secondary to Ibuprofen used to treat his service-connected lumbar spine and left foot disabilities.  

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 

In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999). 

In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim.  There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence.  See 38 C.F.R. § 3.303(b) (2012). 

A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected.  38 C.F.R. § 3.310 (2012).  Secondary service connection is permitted based on aggravation.  Compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995).  A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service.  

In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); 38 C.F.R. § 3.303, 3.310 (2012). 

The record shows that the Veteran currently has tinnitus as noted throughout the record.  See e.g. November 2009 and June 2011 VA examination reports.  Hickson element (1) is accordingly met. 

With respect to Hickson element (2), in-service disease or injury, the Board will address each of these separately.  As to in-service disease, service treatment records are negative for any complaints or findings of tinnitus.  Turning to in-service injury, the Board notes that the Veteran has asserted that he sustained acoustic trauma during service, specifically exposure to small arms, generators, and vehicle noise.  A February 1991 audiogram report showed that the Veteran was routinely exposed to hazardous noise.  Additionally, the Board notes that the Veteran is competent to give evidence about what he experienced, and acoustic trauma and tinnitus are subject to lay observation.  See e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006).  The Board finds that the Veteran was exposed to hazardous noise during service.  Therefore, Hickson element (2) is satisfied. 

As to crucial Hickson element (3), nexus, the question presented, i.e., the relationship, if any, between the Veteran's current tinnitus and his military service, is essentially medical in nature.  The Board is prohibited from exercising its own independent judgment to resolve medical questions.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). 

Pursuant to the Board's December 2010 remand, the Veteran was provided an examination in June 2011.  Upon review of the claims folder, and evaluation and interview of the Veteran, the examiner opined that it was not likely that his reported tinnitus was caused by, a result of, or contributed to by his reported noise exposure during service.  The examiner stated that diagnostic testing showing no cochlear damage or pathology, which demonstrated that tinnitus was not due to noise exposure.  The examiner added that otoacoustic emissions were characteristically abnormal, or not detectable in the frequency region of tinnitus even with people with clinically normal audiograms.  

As to consideration on a secondary basis, the Board notes that the Veteran meets the criteria for Wallin elements (1) medical evidence of a current disability and (2) a service-connected disability.  As noted above, the Veteran has been shown to have tinnitus and he is also service-connected for lumbar spine and left foot disabilities.  

The remaining issue is crucial Wallin element (3), medical evidence of a nexus between the service-connected disease or injury and the current disability.  In this regard, a November 2009 VA medical opinion provides that it was less likely as not that the Veteran's tinnitus was permanently aggravated as a result of Ibuprofen use.  The VA examiner stated that the Veteran's tinnitus was at least as likely as not a result of factors unrelated to Ibuprofen, such as substance use, noise exposure and factors common in the general population.  

The Board finds the November 2009 and June 2011 VA examination reports to be highly probative, as they were based on a thorough review of the Veteran's medical history and cite to the relevant evidence of record and medical principles.  The opinions are also supported by a detailed rationale.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion).  Furthermore, the opinions were obtained from a licensed medical professional rather than a lay person.  
The Veteran has been accorded ample opportunity to present competent evidence in support of the claim.  He has failed to do so.  See 38 U.S.C.A. § 5107(a) (West 2002).  The Court has held that "[t]he duty to assist is not always a one-way street.  If a veteran wishes help, [s]he cannot passively wait for it in those circumstances where [s]he may or should have information that is essential in obtaining the putative evidence."  See Wood v. Derwinski, 1 Vet. App. 190, 92 (1991). 

To the extent that the Veteran himself, his fiancée, or his representative contend that a medical relationship exists between his current tinnitus and service or service-connected disabilities, the Board acknowledges that lay persons are competent to testify as to observations.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau).  Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue.  See Jones v. West, 12 Vet. App. 460, 465 (1999).  The Board notes that in a June 2009 statement, the Veteran's fiancée, T.G., a registered nurse, indicated that it was well-known that the side of effect of Ibuprofen was tinnitus.  However, there is no indication that she has any specialized training in audiology or that her professional credentials are commensurate with those of a licensed VA audiologist and medical doctor.  Indeed, the record reflects that T.G. works in psychiatry.  In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's current tinnitus and any instance of his military service, to include noise exposure, and/or relationship to a service-connected disability to be complex in nature such that specialized medical evidence of nexus is required.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  

Additionally, the Veteran and T.G. have only offered conclusory statements regarding the relationship between the Veteran's in-service noise exposure and/or service-connected disability and his current disorder.  In contrast, the VA examiners provided a detailed rationale in support of the opinions that tinnitus is not related to service and a service-connected disability, and cited to the relevant evidence and medical principles.  For this reason, the VA examiners' opinions are the most probative evidence of record.  See supra Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  As such, the preponderance of the evidence weighs against a finding that the Veteran's current tinnitus is due to any event or injury in service and/or related to a service-connected disability.  Accordingly, Hickson and Wallin elements (3), nexus, have not been satisfied, and the claim fails on this basis. 

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Lumbar Spine Disability

The Veteran essentially contends that his degenerative joint disease of the lumbar spine is more disabling than contemplated by the current 20 percent disability evaluations. 

Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition.  Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 
§§ 4.1, 4.2, 4.7 (2012).

While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.  38 C.F.R. § 4.40 (2012).

Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2012).  The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59 (2012).

With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes.  Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations.  38 C.F.R. § 4.45 (2012).  For the purpose of rating disability from arthritis, the spine is considered a major joint.  38 C.F.R. § 4.45 (2012).

Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint.  When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected.  38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012).  Traumatic arthritis is rated using Diagnostic Code 5010, which directs that the evaluation of arthritis be conducted under Diagnostic Code 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012).  When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion.  The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  Id.  In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating.  The above ratings are to be combined, not added under Diagnostic Code 5003.  38 C.F.R. § 4.71a, Diagnostic Code 5010, Note 1 (2012).  
The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just.  38 C.F.R. § 4.6 (2012).  It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012).

The General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease as follows:

Unfavorable ankylosis of the entire spine (100 percent);

Unfavorable ankylosis of the entire thoracolumbar spine (50 percent);

Unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine (40 percent);

For forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine (30 percent);

For forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or the combined range of motion of the cervical spine not greater than 170 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis (20 percent);

For forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height (10 percent).

38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5237 (lumbosacral strain), 5242 (degenerative arthritis) (2012).

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Id. at Note (5).  

The spine codes permit evaluation under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012).

The following ratings apply to intervertebral disc syndrome based on incapacitating episodes: 

Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months (60 percent);

Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent);

Incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent);

Incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months (10 percent). 

38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). 

An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1 (2012). 

When evaluating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012).

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2.  See also 38 C.F.R. § 4.71a, Plate V (2012).

In this case, the Board finds that a higher evaluation is not warranted at any time during the appeal under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, which assigns a 40 percent evaluation for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012).  The June 2011 examination report indicated that there were no incapacitating episodes and the February 2006 and October 2011 examination reports showed that there were no signs of intervertebral disc syndrome.  Therefore, the criteria for a higher evaluation under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes have not been met.  

As the Veteran is not entitled to an increased rating based on incapacitating episodes, it is necessary to determine whether he is entitled to a higher rating based on his orthopedic and neurological manifestations.

Turning first to the orthopedic manifestations, the Board notes that for a 40 percent evaluation, the Veteran must demonstrate forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242 (2012).  A private treatment record showed that in December 2005 lumbar spine flexion was to 40 degrees with pain, extension was to 15 degrees with pain, left rotation was to 20 degrees with pain, right rotation was to 25 degrees with pain, left lateral flexion was to 20 degrees with pain, and right lateral flexion was to 15 degrees with pain for a combined range of motion of 135 degrees. 

A June 2005 VA treatment record reflected "good" range of motion. 

On VA examination in February 2006, the Veteran demonstrated flexion to 45 degrees with pain at 45 degrees, extension to 25 degrees with pain at 25 degrees, right lateral flexion to 27 degrees with pain at 27 degrees, left lateral flexion to 25 degrees with pain at 25 degrees, right rotation to 25 degrees with pain at 25 degrees, and left rotation to 20 degrees with pain at 20 degrees for a combined range of motion of 167 degrees.  The examiner found that there was no ankylosis of the spine. 

A private treatment record showed that on April 12, 2011, lumbar spine flexion was to 25 degrees with pain, extension was to 15 degrees with pain, left rotation was to 15 degrees with pain, right rotation was to 20 degrees with pain, and left lateral bending was to 15 degrees with pain (no measurement was given for right lateral bending but pain was noted).  The combined range of motion cannot be calculated as no measurement was provided for right lateral bending.  

The June 2011 VA examination report showed thoracolumbar spine flexion from 0 to 50 degrees without pain and with pain up to 70 degrees, extension from 0 to 15 degrees without pain and with pain up to 25 degrees, left lateral flexion from 0 to 30 degrees without pain and with pain up to 35 degrees, left lateral rotation from 0 to 30 degrees without pain and with pain up to 45 degrees, right lateral flexion from 0 to 25 degrees without pain and with pain up to 30 degrees, and right lateral rotation from 0 to 35 degrees without pain and with pain up to 45 degrees for a combined range of motion of 185 degrees without pain and 250 degrees with pain. 

On VA examination in October 2011, the Veteran demonstrated thoracolumbar spine flexion to 30 degrees with pain starting at 30 degrees, extension to 20 degrees with pain starting at 15 degrees, bilateral lateral flexion to 15 degrees with pain starting at 15 degrees, and bilateral rotation to 30 degrees for a combined range of motion of 140 degrees. 

Based on the evidence, the Board finds that the Veteran met the criteria for a 40 percent evaluation beginning April 12, 2011.  At that time, flexion was limited to 25 degrees.  Although in June 2011 he demonstrated increased flexion (to 50 degrees without pain and to 70 degrees with pain), he was shown to have limited flexion (to 30 degrees) four months later.  Resolving all benefit of the doubt in the Veteran's favor, the Board finds the increased flexion in June 2011 was an anomaly as the Veteran experienced reduced flexion prior and subsequent to that evaluation.   However, the Veteran has not been shown to warrant an increased evaluation prior to April 12, 2011, as he did not demonstrate forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine.  

Additionally, the Veteran does not meet the criteria for an evaluation in excess of 40 percent for any period on appeal.  He has not demonstrated unfavorable ankylosis of the entire thoracolumbar spine to warrant a 50 percent evaluation as he has consistently shown the ability to flex, extend, rotate, etc.  Therefore, the criteria for a 40 percent evaluation, but not higher, are met as of April 12, 2011.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242 (2012). 

Consideration has also been given to the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012).  The February 2006 VA examiner observed that the joint function of the spine was additionally limited by pain, fatigue, weakness, lack of endurance, and incoordination after repetitive use; and pain was the major functional impact.  He indicated that the was unable to determine without resorting to speculation on whether pain, weakness, lack of endurance, and incoordination additionally limited the joint function in degrees.  The June 2011 VA examiner observed that there was objective evidence of pain following repetitive motion but there was no additional limitation after three repetitions of range of motion.  Additionally, the October 2011 VA examiner noted that the spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use.  Notably, there is no evidence that repeated use resulted in additional limitations commensurate with limitation of flexion to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine prior to April 12, 2011, and unfavorable ankylosis of the entire thoracolumbar spine thereafter.  The Board finds that the 20 percent evaluation prior to April 12, 2011, and 40 percent evaluation thereafter adequately portray any functional impairment, pain, and weakness that the Veteran experiences as a consequence of use of his lumbar spine disability.  See supra Spurgeon v. Brown, 10 Vet. App. 194 (1997). 

Turning to the neurological manifestations, the Board notes that in rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances.  38 C.F.R. § 4.120 (2012).  Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function.  With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves.  The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.

When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree.  In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis.  The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis.  38 C.F.R. § 4.123 (2012).  

The February 2006 VA examination report showed that motor and sensory function were within normal limits, and bilateral lower extremity reflexes revealed that knee jerk and ankle jerk were 2+ (or normal).  Additionally, straight leg raising was positive bilaterally. 

A March 2010 VA treatment record reflected that there was no lower extremity pain, weakness, numbness, or incontinence.  Neurological evaluation showed that he had a normal gait, strength was 5/5 in all extremities, and straight leg test at this time was negative.  

On VA examination in June 2011, the Veteran demonstrated normal lower extremity reflexes in the bilateral lower extremities (abdominal, ankle jerk, and plantar/Babinski) except as to knee jerk which was hypoactive bilaterally.  Sensory evaluation of the bilateral lower extremities was normal as to vibration, position sense, pain or pinprick, and light touch; and there was no dysetheasias.  Motor evaluation of the bilateral lower extremities demonstrated active movement against full resistance and normal muscle tone without muscle atrophy.  Also, League's sign was negative.  The examiner summarized that motor, reflexes, and sensory evaluations were all normal; and noted that straight leg raising was negative bilaterally.

A June 2011 VA treatment record showed that the Veteran had equivocal straight leg raising test in the bilateral lower extremities, diminished but equal deep tendon reflexes in the lower extremities, intact monofilament sensory test, and normal gait.  

The October 2011 VA examiner noted that there were no sensory deficits from L1-L5 and evaluation of the sacral spine did not reveal sensory deficits of S1.  Also, there was no lumbosacral motor weakness, bilateral lower extremity reflexes showed that knee and ankle jerk were 2+, and there was no indication of pathologic reflexes in the lower extremities.  There were normal cutaneous reflexes and no signs of chronic and permanent nerve root involvement and no non-organic physical signs.  

Based on the evidence, the Veteran is not entitled to a separate rating based upon any neurological residuals for the either lower extremity as there are no independently ratable neurological residuals demonstrated in the record.  While the straight leg test was positive on one occasion, and equivocal on one other, these findings cannot be viewed in isolation.  The remaining evidence clearly shows normal sensory and motor function.  Thus, no separate rating for neurological findings is warranted.

In summary, the Board finds that an evaluation of 40 percent, but not higher, is warranted beginning April 12, 2011, but not earlier.  See supra Fenderson v. West, 12 Vet. App. 119 (1999).   

Major Depressive Disorder

The Veteran essentially contends that his major depressive disorder is more disabling than contemplated by the current 50 percent evaluation.  The Veteran is in receipt of a 100 percent disability evaluation from January 4, 2010, to February 28, 2010, for hospitalization.  Prior to and subsequent to that period, he is evaluated as 50 percent disabling.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  The Board will evaluate the Veteran's disability outside of the period in which he is in receipt of a 100 percent evaluation.  

The Veteran's disability has been evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9434.  Diagnostic Code 9434 is deemed by the Board to be the most appropriate diagnostic code primarily because it pertains specifically to the diagnosed disability in the Veteran's case (major depressive disorder).  In any event, with the exception of eating disorders, all mental disorders including anxiety disorder are rated under the same criteria in the rating schedule.  Therefore, rating under another diagnostic code would not produce a different result.  Additionally, the Veteran has not requested that another diagnostic code should be used. 

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission.  The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. See 38 C.F.R. § 4.126 (2012).  Age may not be considered as a factor in evaluating a service-connected disability.  38 C.F.R. § 4.19 (2012).

The pertinent provisions of 38 C.F.R. § 4.130 relating to rating psychiatric disabilities read as follows: 

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; difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130, Diagnostic Code 9434 (2012).

A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships.  Id.

A 100 percent evaluation is warranted where there is evidence of total occupational and social impairment due to 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; disorientation to time or place; memory loss for names of close relatives, own occupation or own name.  Id.

The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category.  See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous."  Id.   The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating."  Id.  Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples.  Put another way, the severity represented by those examples may not be ignored.

Furthermore, with specific regard to the 70 percent rating, the Federal Circuit has recently held that such rating "requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation."  Vazquez-Claudio v. Shinseki  713 F.3d 112, 118 (Fed. Cir. 2013).  

Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM- IV), p. 32).  An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment.  See 38 C.F.R. § 4.126 (2012); VAOPGCPREC 10-95 (Mar. 1995); 60 Fed. Reg. 43186 (1995).

In addition to major depressive disorder, for which service connection has been established, the record shows additional diagnoses of posttraumatic stress disorder (PTSD) and anxiety, which are not currently service-connected. 

It is now well-settled that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability, in the absence of medical evidence which does so.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). 

Some of the medical evidence in the instant case does differentiate between the symptomatology associated with the Veteran's major depressive disorder and that resulting from his nonservice-connected disorder (i.e., PTSD).  Where a mental health professional has attempted to distinguish between said symptomatology, the Board will so note.  In all other cases, for the purposes of this decision, the Board will attribute all of the Veteran's psychiatric symptoms to his service-connected major depressive disorder.

The relevant evidence includes VA treatment records dated throughout the appeal showing that the Veteran had socially isolated himself.  He had nightmares and flashbacks of Katrina, difficulty sleeping, increased depression, difficulty to motivate, and increased appetite.  Mental status evaluations showed that he was alert, oriented, attentive, clean, and neat.  His mood was described as depressed, frustrated, and anxious; and he demonstrated a congruent affect.  He denied suicidal and homicidal ideation, and exhibited good insight and judgment.  These records reflect that the Veteran was assigned GAF scores of 48 (September 2010) and 50 (July 2011).

In a July 2008 statement, T.G., R.N., the Veteran's fiancée indicated that the Veteran's mood was labile; and he was withdrawn, extremely short-tempered, and could not stand to hear children.  She stated that his appearance and hygiene had declined.  He also had signs of helplessness and hopelessness, and weekly panic attacks.  Additionally, he was delusional and thought the world was against him.  

A September 2008 examination report showed that the Veteran displayed good grooming and hygiene without evidence of psychomotor or anxiety problems.  He was alert, focused, had good eye contact, and communicated effectively.  His answers to questions were relevant, sequential, and appropriately detailed.  He did not show signs of a thought disorder but had outward signs of depression (sadness, blunted affected, and appeared tired).  There was no evidence of emotional dyscontrol. 

The Veteran reported panic attacks, hopelessness, and restlessness.  He denied suicidal thoughts at that time but had attempted suicide the year before.  He also denied hallucinations or other indicators of a thought disorder, and indicated that his depression kept him from working full time but that his back problems also impacted his work.  The Veteran had serious relationship problems that made it difficult to concentrate at work; he reported difficulty being around people and tending to isolate and not interact socially.  

On mental status evaluation, the examiner noted that the Veteran was fully oriented, and his working and delayed memory were good.  He identified a current event, three large cities, and the President; and correctly identified objects and counted backwards from 100 (but made mistakes and had difficulty doing this last task). He was unable to add three single digits correctly and was unable to abstractly reason but had good social judgment.  In summary, the examiner noted that the Veteran was quite depressed, was having regular panic attacks, had PTSD, and had generalized anxiety disorder.  His mental health issues were compounded by his medical problems.  He was not a danger to himself or others.  Provisional diagnoses of severe major depression, panic disorder without agoraphobia, PTSD, and generalized anxiety disorder were noted; and a GAF score of 54 was assigned.  

An October 2010 letter from a VA staff psychiatrist indicated that the Veteran may be ill enough at times to be incapacitated for duty but not ill enough to seek medical treatment.  

A February 15, 2011, private psychological evaluation report noted that the Veteran felt depressed daily; experienced feelings of helplessness and hopelessness, fluctuations in his weight, low self-esteem, irritability, suicidal ideation, and marked problems with concentration.  He indicated that there were days he could not get out of bed, he had had marked problems with interpersonal relationships, he isolated himself from his family and others, and his wife had to take care of finances and raising their children.  It was noted that he was currently working 20 hours a week at VA in housekeeping but that he often missed worked due to his depression and lack of sleep.  He also stated that most of the time due to his depression that he did not work but hid instead as he had problems with pace and persistence.  He had problems getting along with his supervisors and other employees.  

He had recurrent and intrusive thoughts, recurrent nightmares, auditory hallucinations, flashbacks following the nightmares, night sweats, fear of going to sleep, distress if anything reminded him of New Orleans, becoming sick if he smelled anything decomposing or stagnant water, and had anxiety from the smell and got sick to his stomach.  He avoided all people that were with him or connected to the event, had marked disinterest in significant activities, did not go to church regularly and if he did he sat in the back, and felt detached or different from most people.  He also had emotional numbing, foreshadowing for the future, difficulty falling asleep, irritability, irrational anger, difficulty concentrating, hypervigilance, exaggerated startle response, and problems learning new material under stress.  Additionally, the Veteran was noted to have marked problems with interpersonal relationships and was socially isolated even though he had a circle of friends.  Due to his extreme anxiety, he could not be in crowds.  He also had marked problems getting along with anyone, including his wife, mostly due to his isolating himself but also due to his irrational temper.  

Mental status evaluation revealed that the Veteran was cooperative but had significant problems with grooming.  He maintained normal eye contact, his mood was depressed, and his affect was flat.  The examiner observed that the Veteran was a concrete thinker with poor abstract skills and he had marked problems with memory and concentration.  He was not homicidal but was at high risk for suicide, was paranoid almost to a delusional level; and he had auditory hallucinations,  obsessive rituals, and poor formal and social judgment.  

In summary, the examiner found that the Veteran was declining in his functional capacity and was not going to continue his job much longer.  His chronic major depression and PTSD were causing his condition to worsen; he had marked problems with concentration, memory, activities of daily living, hygiene, persistence, and pace.  He socially isolated even with his family and took antidepressants which were not effective at controlling his depressive disorder.  He was not able to do even simple tasks at times, could not handle stress, and could not learn new material under stress.  Diagnosis included chronic major depression interacting with PTSD, and a GAF score of 45 was assigned.  

A July 2011 letter from the VA psychiatrist noted that the Veteran's PTSD and depression prevented him from performing his job at full capacity.  Despite medication management and support programs, the Veteran's symptoms of anxiety, isolation, avoidance, hypervigilance, hopelessness, and helplessness persisted.  

The record also contains evidence demonstrating that the Veteran struggled at work and was eventually separated from his job at VA due to his depression in July 2011. 

On VA examination in October 2011, the examiner noted diagnoses of PTSD and severe recurrent major depressive disorder without psychotic features.  The examiner indicated that the symptoms of each mental disorder could be delineated.  The symptoms specifically attributed to major depressive disorder, a mood disorder, were depressed mood, generalized loss of interest, no libido, no appetite, insomnia, low energy, and having no social life.  A GAF score of 45 was assigned.  As to employment, the examiner indicated that the Veteran's productivity was weakened, he was detached from people, he was irritable and had spontaneous rage making him more socially isolated, and he deliberately kept away from people in order to avoid confrontations because he was easily provoked.  The examiner concluded that the Veteran was severely impaired from maintaining and/or gaining employment.  The examiner also indicated that the Veteran's current psychiatric symptoms caused occupational and social impairment with reduced reliability and productivity.  He exhibited flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships as he was unable to communicate with others in an occupational environment.  He had difficulty completing tasks due to stress and irritation.  Additionally, the Veteran had no friends and did not socialize often with people and he had difficulty maintaining effective family role functioning because he preferred to isolate himself from his family at times.  He had an intermittent inability to perform recreational or leisurely pursuits because he no longer had interests in hobbies he once enjoyed.  The Veteran also had occasional interference due to physical health problems.  The examiner indicated that he had no problems understanding commands, and did not appear to pose any threat or danger or injury to himself or others.  

On VA examination for PTSD in May 2012, the examiner noted a depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss (e.g., forgetting names, directions, or recent events), disturbances of motivation and mood, difficulty in establishing and maintain effective work and social relationships, and suicidal ideation.  The examiner commented that the Veteran's responses raised an issue of validity as to the evaluation, and the examiner was unable to render a mental health diagnosis or comment on his level of impairment.  

Based on the evidence and resolving all doubt in the Veteran's favor, the Board find that as of February 15, 2011, an evaluation of 70 percent evaluation, but not higher, is warranted for major depressive disorder.  

Prior to February 15, 2011, the Veteran's major depressive disorder symptoms are contemplated in the criteria for a 50 percent evaluation.  He demonstrated good grooming, hygiene, insight, judgment, and memory, without evidence of a thought disorder, emotional dyscontrol, or hallucinations.  He had problems with relationships and being around people, as well as regular (weekly) panic attacks, sleep disturbances, problems with motivation, and displayed a blunted affect.  These factors, however, are considered in his current 50 percent disability evaluation.  

Significantly, the Veteran did not demonstrate suicidal ideation, apart from one isolated attempt in 2007.  Nor does the record demonstrate obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene.  Although the Veteran's fiancée  indicated that his appearance and grooming had "declined," the examiners observed good grooming and hygiene.  Furthermore, his GAF scores of  48, 50, and 54 are congruent with a 50 percent evaluation.  Scores ranging from 51 to 60 reflect 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).  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).  See 38 C.F.R. § 4.130 (2012) (incorporating by reference the VA's adoption of the DSM-IV for rating purposes).  In short, prior to February 2011, the Veteran's symptoms more nearly approximate those in the 50 percent rating category.  Therefore, an evaluation in excess of 50 percent for major depressive disorder is not warranted prior to February 15, 2011.   

Beginning February 15, 2011, the Veteran's symptoms included hallucinations; consistent suicidal ideation; marked problems with memory, concentration, judgment, activities of daily living; neglect of personal appearance and hygiene; obsessional rituals; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (e.g., spontaneous rage); difficulty in adapting to stressful circumstances; and an inability to establish and maintain effective relationships.  Additionally, he has consistently been assigned a GAF score of 45, which reflects 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), which is in line with a 70 percent disability evaluation.  See 38 C.F.R. § 4.130 (2012).  The Board specifically finds that, as of February 2011, the Veteran consistently displayed deficiencies in most areas delineated in the 70 percent rating category. 

The evidence does not show that the Veteran has demonstrated total occupational and social impairment contemplated by the maximum, 100 percent rating.  For example, there is no evidence of 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; disorientation to time or place; memory loss for names of close relatives, own occupation or own name for an evaluation in excess of 70 percent.  Id. 

In summary, the Board finds that an evaluation of 70 percent, but not higher, is warranted beginning February 15, 2011, but not earlier.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  



Other Considerations

In making this decision, the Board has fully considered the lay assertions of record.  In this regard, a layperson is competent to report on his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

Competency of evidence differs, however, from the weight and credibility assigned to evidence.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination that addresses the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify").  In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).

The Board has not overlooked the Veteran and his fiancée's statements with regard to the severity of his disabilities.  They are competent to report on factual matters of which they have firsthand knowledge; and the Board finds that these reports concerning symptomatology have been credible.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Board notes, with respect to the Rating Schedule, where the criteria set forth therein require medical expertise which the Veteran has not been shown to have, the objective medical findings and opinions provided by the Veteran's VA examination reports and treatment records have been accorded greater probative weight.  Furthermore, evaluations of spine disabilities and psychiatric disorder are predominately based on clinical findings taken by medical measurements/observations.  The Board notes that that the Veteran's fiancée has a background in psychiatry and her observations have been considered along with the other medical evidence of record.   

The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2012).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's various disabilities with the established criteria shows that the rating criteria reasonably describes the Veteran's disability levels and symptomatology.  

As to the lumbar spine disability, the Veteran's complaints of pain and any limitation of range of motion are specifically contemplated in the criteria for  evaluating spine disabilities.  Likewise, the Veteran's struggle with maintaining employment as a result of his major depressive disorder is explicitly considered in the criteria for evaluating his psychiatric disability.  Both criteria practicably represent the average impairment in earning capacity resulting from the Veteran's respective disabilities.  See 38 C.F.R. § 4.1 (2012).  

In short, the rating criteria reasonably describe the Veteran's disability levels and symptomatology.  The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

ORDER

An annual clothing allowance pursuant to 38 U.S.C.A. § 1162 for 2011 is granted.

Service connection for tinnitus, to include as secondary to medicine taken for service-connected degenerative joint disease of the lumbar spine and left foot plantar keratosis, is denied.

Prior to April 12, 2011, an initial evaluation in excess of 20 percent for degenerative joint disease of the lumbar spine is denied.

Beginning April 12, 2011, an evaluation of 40 percent, but not higher, for degenerative joint disease of the lumbar spine is granted, subject to the regulations governing the award of monetary benefits.

Prior to February 15, 2011, an evaluation in excess of 50 percent for major depressive disorder is denied.

Beginning February 15, 2011, an evaluation of 70 percent, but not higher, for major depressive disorder is granted, subject to the regulations governing the award of monetary benefits.


REMAND

As to the claims for service connection for a left elbow disability and an acquired psychiatric disorder, in the April 2013 informal hearing presentation which the Board has accepted in lieu of a VA Form 9, the Veteran's representative referred to a March 2013 memorandum.  The representative stated that the Veteran clarified in the March 2013 memorandum that he wanted a travel board hearing with respect to these two claims.  As he has not yet been afforded such a hearing, the Veteran should be scheduled for a Travel Board hearing at the RO.  38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. §§ 19.75, 19.76, 20.703, 20.704 (2012). 

With regard to the claim for service connection for hypertension, the Board remanded this matter in December 2010 to provide the Veteran with an examination to determine the etiology of his current disorder.  In this regard, the Board noted at that time that in a July 2008 correspondence, T.G., RN, the Veteran's fiancée and a VA registered nurse working in psychiatry, described the Veteran's psychiatric symptoms in detail and provided the medical opinion that as a result of these symptoms, the Veteran's blood pressure was constantly elevated which required medication.  The Veteran has also contended that the medications he takes for his service-connected major depressive disorder has caused or aggravated his hypertension.  
Pursuant to the Board's remand, the Veteran was afforded an examination for his hypertension in June 2011.  In relevant part, the examiner determined that the Veteran's essential hypertension was less likely related to depression or the medications he took for his disorder and was most likely related to his chronic tobacco use, multiple drug abuse, race, sex, and obesity.  Noting the Veteran's medications for his depression, the examiner indicated that the side effect of Citalopram in one to ten percent of individuals was postural hypotension, but that it did not cause hypertension.  Additionally, he stated that the side effect of Mirtazapine included hypertension in one to ten percent of individuals.  Accordingly, the use of the medications failed to meet the criteria of at least as likely as not to cause the Veteran's essential hypertension.  The examiner further noted that the side effects of chronic tobacco use, multiple drug abuse, race, sex, and obesity did meet the criteria for most likely the etiological factors for the essential hypertension.  

The Board finds that the examination report is inadequate as the examiner failed to address whether the Veteran's hypertension was aggravated by the use of the psychiatric medications.  On remand, the Veteran must be afforded another examination to determine whether his hypertension is aggravated by his service-connected depressive disorder.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate); see also Allen v. Brown, 7 Vet. App. 439, 446 (1995) (holding that if aggravation of a veteran's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service connected for that degree of aggravation; 38 C.F.R. § 3.310 (2012).  (The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability).

Finally, the issue of entitlement to TDIU is inextricably intertwined with the pending claims.  In other words, if a claim for service connection is granted, this may impact the TDIU claim.  See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (noting that where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (finding that two or more issues are inextricably intertwined if one claim could have significant impact on the other). Action on the Veteran's TDIU claim is therefore deferred.

Accordingly, the case is REMANDED for the following actions:

1. Schedule the Veteran for a hearing before a Veterans Law Judge at the RO for the issues of service connection for a left elbow disability and an acquired psychiatric disorder.  All correspondence and any hearing transcripts regarding this hearing should be associated with the claims folder.  

2. Schedule the Veteran for an examination to determine the nature and etiology of his hypertension.  The claims file and a copy of this remand must be made available to and be reviewed by the examiner in conjunction with the examination.  The examination report must reflect that the claims file was reviewed in conjunction with the examination. 

The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's current hypertension was either (1) caused by or (2) is aggravated by the Veteran's service-connected disabilities (to include medications he takes for his service-connected major depressive disorder).   

If the examiner determines that hypertension is aggravated by the service-connected major depressive disorder, the examiner should report the baseline level of severity of the nonservice-connected hypertension  prior to the onset of aggravation.  If some of the increase in severity of the nonservice-connected hypertension is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease.

Any opinion provided must include an explanation of the basis for the opinion.  The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).  The report must be typed.

3. Thereafter, readjudicate the Veteran's claims for service connection for hypertension and a TDIU.   If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs