Citation Nr: 1323428	
Decision Date: 07/23/13    Archive Date: 08/01/13

DOCKET NO.  08-08 121	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for chronic, recurrent ear infections.

3.  Entitlement to service connection for a right ankle disorder, including as secondary to a service-connected left knee disability.

4.  Entitlement to an initial rating higher than 30 percent for posttraumatic stress disorder (PTSD).

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


REPRESENTATION

Appellant represented by:	Lisa Lee, Attorney


ATTORNEY FOR THE BOARD

Dan Brook, Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from September 1969 to March 1972.

This appeal to the Board of Veterans' Appeals (Board/BVA) originated from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied claims for service connection for hearing loss, tinnitus, recurrent ear infections and a right ankle disorder.

A July 2008 RO decision also, in pertinent part, granted service connection for PTSD and assigned an initial 30 percent rating retroactively effective from December 9, 2005, the date of receipt of this claim.  The Veteran responded by appealing for a higher initial rating for this condition.  See Fenderson v. West, 12 Vet. App. 119 (1999).

An October 2008 RO decision denied a still additional claim for a TDIU.  And since the TDIU claim was at least partly predicated on the service-connected PTSD for which the Veteran is requesting a higher rating in this appeal, the TDIU claim is derivative of this increased-rating claim.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378, 1384 (2001).

In September 2010, the Board, in pertinent part, denied the claims for service connection for tinnitus, recurrent ear infections and a right ankle disorder.  
Whereas the Board, instead, remanded the claim for a higher initial rating for the PTSD and the derivative TDIU claim to the RO for further development and consideration.

In the meantime the Veteran appealed the Board's decision, as concerning the claims it had denied, to the U. S. Court of Appeals for Veterans Claims (Court/CAVC).  And in a June 2011 Order, granting a Joint Motion, the Court partially vacated the Board's decision to the extent it had denied entitlement to service connection for tinnitus, recurrent ear infections, and a right ankle disorder.  The Court remanded these claims to the Board for further development and readjudication in compliance with the instructions in the Joint Motion.

The Joint Motion acknowledged the Court did not have jurisdiction to consider the claims for a higher initial rating for the PTSD and a TDIU since the Board had remanded those claims instead of denying them.  See Breeden v. Principi, 17 Vet. App. 475, 478-79 (2004); Hampton v. Gober, 10 Vet. App. 481, 483 (1997).  See also Tyrues v. Shinseki, 23 Vet. App. 166, 180 (2009); Acosta v. Principi, 18 Vet. App. 53, 59 (2004).

In March 2012, the Board remanded the claims for service connection for tinnitus, recurrent ear infections and right ankle disorder for further development.  These claims, along with the claim for a higher initial rating for the PTSD and the derivative TDIU claim are now again before the Board for further appellate consideration.

In May 2013, the Veteran's attorney provided additional evidence consisting of VA treatment records.  She waived the right to have the RO, as the Agency of Original Jurisdiction (AOJ), initially consider this additional evidence, preferring instead to have the Board do so in the first instance.  See 38 C.F.R. §§ 20.800, 20.1304 (2012).

The claims of entitlement to service connection for a right ankle disorder, including as secondary to a service-connected left knee disability, and for a TDIU are being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.  Whereas the Board instead is going ahead and deciding the remaining claims for service connection for tinnitus and recurrent ear infections and for a higher initial rating for the PTSD.


FINDINGS OF FACT

1.  The Veteran's tinnitus is not shown to be related to his military service and his reports of continuous tinnitus since his service (i.e., continuity of symptomatology), even though competent, are not also credible so not ultimately probative.  Tinnitus also is not a condition according to regulation that VA considers as necessarily chronic, consequently cannot in any event be linked to service merely by showing continuity of symptomatology since service.  Moreover, the notion of continuity of symptomatology since service only applies to conditions that were noted initially in service, and in this instance the Veteran's tinnitus was not.

2.  The competent and credible evidence of record indicates he does not have a current, chronic disability manifested by recurrent ear infections.

3.  His PTSD, however, causes occupational and social impairment with reduced reliability and productivity, though not deficiencies in most areas.


CONCLUSIONS OF LAW

1.  It is not shown the Veteran's tinnitus is the result of disease or injury incurred in or aggravated by his military service.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012).

2.  It also is not shown he has chronic, recurrent ear infections, much less due to or on account of disease or injury incurred in or aggravated by his military service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

3.  But the criteria are met for a higher 50 percent initial rating for his PTSD, though no greater rating.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

A June 2006 letter explained the evidence necessary to substantiate the claims for service connection for tinnitus and ear infections and apprised the Veteran of his and VA's respective responsibilities in obtaining this supporting evidence.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In addition, the letter explained how "downstream" disability ratings and effective dates are determined in the eventuality the underlying claims for service connection are granted, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  As well, the letter was provided prior to initially adjudicating these claims in November 2006, so in the preferred sequence according to Pelegrini v. Principi, 18 Vet. App. 112 (2004).


With regards to the claim of entitlement to a higher initial rating for the PTSD, this claim arose from the initial grant of service connection for this condition.  For initial-rating claims, where, as here, service connection has been granted and the initial rating and effective date assigned, the claim for service connection 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 the notice was intended to serve has been fulfilled.  See Dingess/Hartman v. Nicholson, 19 Vet. App. at 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007); and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).

According to the holding in Goodwin v. Peake, 22 Vet. App. 128 (2008), and this line of precedent cases and progeny, instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability rating and effective date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement with the initial rating and/or effective date is not resolved, and this occurred in this particular instance.  The RO provided the Veteran the required SOC, also since has provided him a supplemental SOC (SSOC), together discussing the applicable statutes and regulations and containing discussion of the reasons and bases for not assigning a higher initial rating for his PTSD.  So he has received all required notice.

With regards to the duty to assist, VA is obligated to try and obtain all potentially relevant records and to provide an examination for a medical opinion when needed to decide a claim.

The claims file contains the Veteran's service treatment records (STRs), 
post-service VA and private treatment records, the reports of his VA examinations, and his and his attorney's statements and pleadings.  The RO/AMC also appropriately complied with the March 2012 remand instructions concerning the claims for service connection for tinnitus and ear infections by providing the Veteran VA examinations for medical opinions regarding diagnoses and etiologies, including especially in terms of any potential relationship between these conditions and his military service.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); and McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The RO/AMC also appropriately complied with the earlier September 2010 remand, as concerning the claim for a higher initial rating for his PTSD, by providing him VA examinations in January 2011 and June 2012 assessing and reassessing the severity of this condition - which, as explained, is now the determinative "downstream" issue since this condition has been determined to be a 
service-connected disability and he is contesting the initial rating assigned for it.  38 C.F.R. § 3.327(a).  See also Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995).

Moreover, in further developing these claims in these instructed ways, there was compliance with the Board's remand directives, certainly substantial compliance.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

The Board has found nothing in the file suggesting there is any evidence still needing to be obtained that is obtainable.  Since all required notification and development of these claims has been completed, the Board is proceeding with its adjudication of these claims.


II.  Analysis

Service connection

In deciding theses claims, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during his active military service or for aggravation during service of a 
pre-existing condition beyond its natural progression.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).

Direct service connection requires competent and credible evidence showing:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995).


For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic."  Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim.  38 C.F.R. § 3.303(b) (2012).  But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  By regulation, sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system".  The Veterans Benefits Administration's (VBA's) M21-1MR has a section titled "Determining Impaired Hearing as a Disability," which includes the following note:  "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)."  
M21-1MR III.iv.4.B.12.a.  Tinnitus, on the other hand, is not one of the specific enumerated diseases, nor are ear infections.  38 C.F.R. § 3.309(a).

In deciding claims, the Board must assess the credibility and weight of all the evidence, so including both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds persuasive or unpersuasive and providing reasons or bases for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.


The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is "credible", or worthy of belief.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine additionally whether the evidence also is credible).  Only if evidence is both competent and credible does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  The third and final step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).

Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, 
the Veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, lay persons are competent to provide opinions on some medical issues; their competency depends entirely on the specific disability at issue.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  Specifically, lay evidence has been found to be competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr, supra (concerning varicose veins); see also Jandreau, supra (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).

However, laypersons also have been found not competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).


After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See also 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, he prevails.  See Gilbert, supra.  The preponderance of the evidence must be against the claim for benefits to be denied.  Alemany v. Brown, 9 Vet. App. 518 (1996). 

Tinnitus and Ear Infections

The Veteran's STRs show no complaints, treatment or diagnosis of tinnitus.  A July 1971 hospital admission note shows he had sustained an injury to his left knee when his vehicle struck a mine.  An August 1971 clinical note indicates he had had three ear infections while in Vietnam, although he was then currently okay, his ears benign, tympanic membranes (ear drums) intact, with no exudate.  A December 1971 discharge summary pertaining primarily to left leg surgical treatment indicates that, during the hospitalization in October 1971, he had had four teeth extracted.  Following the extractions, he had experienced bleeding from his right ear and was found to have a bullous myringitis and otitis of the ear.  He received treatment and was found to have excellent clearing of the problems.   During his subsequent March 1972 military separation examination, his ears were found to be normal.


An April 1972 VA compensation examination report he had had some bleeding from his right ear following extraction of his wisdom teeth, but that the relationship between the teeth extractions and hemorrhage was not forthcoming.  The ears appeared normal on examination.  There was no mention of tinnitus or a recurrence of the ear infections he had experienced while in service.

A March 2006 VA audiology consultation note indicates he reported gradual-onset hearing loss and communication difficulties.  He also complained of constant bilateral tinnitus and outer-ear infections since Vietnam.  On objective physical examination, his ear canals and tympanic membranes were intact, and he had normal middle ear function.  The examiner diagnosed mild-to-moderate sensorineural hearing loss bilaterally.

A June 2006 VA ear, nose and throat (ENT) consultation resulted in a diagnostic assessment of resolved epistaxis.

During a November 2006 VA audiological evaluation, the Veteran reported that he believed he had gotten ear infections from water in his ears and that he would dry out his ears with cotton swabs.  Otoscopy showed clear ear canals and intact tympanic membranes bilaterally.  He also reported noticing "cricket" sounds in his ears since 1971, presumably referring to tinnitus.  The examiner did not diagnose any condition involving recurrent ear infections.  The examiner also determined that the Veteran's tinnitus was less likely than not related to noise exposure during his military service because he had normal hearing upon leaving service and had had significant occupational and recreational noise exposure in the intervening 30 years since service.

During a February 2008 VA primary care visit, the Veteran reported that he would get ear pain if he did not use a Q-Tip after showering.  He indicated that he experienced the pain every other month.  He tended to use peroxide or warm salt water irrigation and requested cipro drops.  Examination showed that his ear canals looked good and that there was no drainage.  The treating physician discussed with him trying a mixture of white vinegar/rubbing alcohol to prevent infection.  

The physician was hesitant to prescribe the cipro drops as the Veteran may not have been experiencing any infection and the antibiotic could cause resistance if used inappropriately.

A May 2008 VA urgent care progress note shows the Veteran reported on and off bilateral ear pain, left greater than right.  He indicated that he had attempted to care for the ears on his own but, while the right ear had cleared up, the left ear had gotten much worse.  Physical examination showed that the right external ear canal had mild erythema with the tympanic membrane bulging, intact and red.  The left external ear canal had marked edema and erythema and mild purulent drainage, with the tympanic membrane bulging and intact with erythema.  The nasal membranes were pale and mildly boggy with post nasal drainage.  The diagnostic impressions were upper respiratory infection, otitis externa with effusion and allergic rhinitis.  The Veteran was prescribed antibiotics.

A July 2009 VA treatment record shows that an audiogram indicated no significant change in the Veteran's hearing since his 2006 evaluation.  His tympanic membranes were visible and appeared normal.  He reported bilateral tinnitus.

In a July 2011 letter, the Veteran's former wife indicated that she was married to him from February 1974 until September 1990.  She indicated that he had had a lot of ear problems, including ringing, ear infections and trouble hearing.  In the beginning, the ringing was almost constant and then turned to the sound of crickets.  The former wife would use peroxide or alcohol to try and relieve his pain.  They also used warm salt water to rinse out his ears and got drops and antibiotics from the doctor.  The former wife indicated that, after treating the problems on their own for some time, the couple attempted to get care at the Jacksonville VA Medical Center (VAMC).  The doctor who saw them was not helpful, however, and simply told the Veteran to "come back in 30 years when he had real problems."  


In a separate July 2011 letter, the Veteran's mother indicated that the Veteran had lost his hearing during Vietnam.  When he came home and even currently, he could not hear her speaking to him.  She said many times she had to go to the drug store and get over-the-counter medicines to put in his ears until he could go to the doctor.  She indicated that currently he had a lot of trouble with his ears, including hearing cricket noises in them all the time.  

In an August 2011 statement, the Veteran's current wife indicated that she had been married to him since December 2000 and that they had dated for five years before that.  She noted that he was constantly complaining that he was hearing "crickets" in his ears.  Along with this tinnitus came the "ear infections" for which the doctor had him pouring a combination of peroxide and alcohol into his ears.  He would get these "infections" approximately four times per year, for about a week on each occasion.  The Veteran attributed these "infections" to exposure to mucky waters in the forest in Vietnam.  

During a June 2012 VA ear conditions examination, he reported that while in Vietnam he came down with a bad ear infection.  He indicated that he received treatment by a corpsman.  He was told to care for his ears by irrigating them with a salt water solution and using cotton to dry them.  After service, he used peroxide in the ears, along with salt water and later, alcohol.  He indicated that he had been taking care of his ears this way for 40 years.  He noted that when he first left service, he was experiencing ear infections daily, weekly or monthly, sometimes to the point where he could not talk because his ears hurt so badly.  He indicated that the records from these early doctor's appointments were unavailable.  

The examiner noted that she had reviewed the claims file, including the VA medical records.  She found that there currently was no objective evidence of ear infection of either ear on examination.  There also was no objective evidence of recurrent ear infections of either ear based on her review of the claims file.  She noted the Veteran apparently had had three ear infections while serving in Vietnam.  During his subsequent admission for knee surgery during service, however, his ear examination was normal, indicating the ear infections had resolved with no apparent residual.  Also, the right ear infection that he had during that admission was also shown to have resolved as evidenced by the December 1971 discharge summary and the normal ear examination at separation.   There subsequently was no objective evidence of a recurrent ear infection in the medical record.

During additional VA examination in June 2012, the Veteran reported current tinnitus and indicated it had begun in 1971 after a mine explosion.  He noted that he experienced a "cricket sound" that was moderately severe.  The examiner noted that the Veteran had current hearing loss and that the tinnitus was associated with the current hearing loss.  But the examiner determined the tinnitus was less likely than not caused by military noise exposure.  He noted that during service the Veteran was exposed to artillery fire, an anti-tank mine explosion, rocket fire, small arms fire and machine guns without hearing protection.  After service, however, he had occupational noise exposure for six years working with heavy equipment, although he had hearing protection.  Still additionally, though, he had ridden motorcycles without hearing protection and had been to a couple of NASCAR races without hearing protection.  

Ultimately, the examiner found that the Veteran's report that his tinnitus had begun in service had no corroborating objective evidence.  According to the Noise Manual (5th Edition, edited by Berger et. Al., AIHA Press 2000, p. 125), only seldom does noise cause a permanent tinnitus without causing hearing loss.  Thus, as the Veteran's hearing was within normal limits in both ears with no standard threshold shift in service, including at separation, and given that the STRs were unremarkable for any tinnitus, it was the examiner's clinical opinion that the tinnitus was less likely than not (less than a 50-percent probability) caused by or a result of noise exposure in service and that it was less likely than not that his tinnitus was attributable to the Veteran's service or dated back to his service.

In a September 2012 letter, a former private treating physician indicated that he had seen the Veteran for a number of times in the early 1970s for ear infections and noted that the Veteran had continued to have problems over the next 15 to 20 years.


Tinnitus

The evidence affirmatively indicates the Veteran has tinnitus, so there is no disputing this.  Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking."  See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994).  Indeed, because of its inherently subjective nature, even a layman such as the Veteran is considered competent to report these observable manifestations.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation").

It also is apparent that he had significant noise exposure during his military service, but also perhaps during the many years since in his civilian life.

Thus, resolution of this claim ultimately turns on whether his tinnitus is attributable to his military service or, instead, to something else entirely.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

Concerning this determinative issue of causation, both the June 2012 VA examiner and the earlier November 2006 VA examiner specifically found that the Veteran's tinnitus was less likely than not related to noise exposure during his service.  The November 2006 VA examiner reasoned that the Veteran had normal hearing acuity during service and had had significant occupational and recreational noise exposure in the intervening years since service.  Similarly, the June 2012 VA examiner pointed out the Veteran's hearing was within normal limits in both ears with no standard threshold shift in service, including at separation, and that his STRs were unremarkable for indications or suggestions of any tinnitus.  Also, in support of this latter opinion, the examiner referenced the "Noise Manual" finding that only seldom does noise cause a permanent tinnitus without causing hearing loss.  And since the Veteran did not have hearing loss in service, this was reason or rationale for disassociating his tinnitus from his service.  There is no medical opinion of record to the contrary (i.e., an opinion tending to indicate that the current tinnitus is related to noise exposure in service).

The Veteran has affirmatively reported that his tinnitus began in 1971, after his vehicle struck a mine in Vietnam in July 1971, and has continued to the present day.  He is competent to make this assertion.  See Washington v. Nicholson, 19 Vet. App. 363 (2005) (A Veteran is competent to report what occurred in service because testimony regarding firsthand knowledge of a factual matter is competent).

When trying to establish relevant disease, injury or event in service, there is a lesser pleading and proof requirement when the event in question is said to have occurred in combat and when shown to be consistent with the places, types, and circumstances of the particular Veteran's service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  Combat means the Veteran personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and did not merely instead serve in a general combat area or combat zone.  This is a case-by-case determination, so fact specific.  See Moran v. Peake, 525 F.3d 1157 (Fed. Cir. 2008); VAOPGCPREC 12-99 (October 18, 1999).

In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence.  If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  The Federal Circuit Court has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury.  Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).  To establish entitlement to service connection, however, there still must be evidence of a current disability and a causal relationship between the current disability and the combat injury.  Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).


In other words, merely having sustained a combat injury and now having current disability is not enough to sustain the claim in terms of establishing the required attribution of the current disability to the combat injury.

Consider, as well, that, unlike sensorineural hearing loss (as a type of organic disease of the nervous system), tinnitus is not a listed "chronic" disease under 38 C.F.R. 3.309(a).  Consequently, the Veteran may not establish his entitlement to service connection for tinnitus simply based on his lay assertion of continuity of symptomatology since the combat injury in service.  Instead, along with the two other requirements of service connection (relevant injury in service and current disability), he as mentioned has to establish the required nexus or correlation between the combat injury in service (which, here, was his noise exposure in Vietnam) and his current disability (of tinnitus).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  And it is in this critical respect that the evidence is not supportive of his claim or even in relative equipoise, meaning about evenly balanced for and against it, to allow for the granting of his claim.

He simply cannot circumvent or refute the VA compensation examiners' unfavorable opinions disassociating his tinnitus from his military service merely by claiming to have experienced continuous symptoms since service under § 3.303(b).  And this is true even accepting that continuous symptoms, not necessarily instead treatment for them, is the essence of § 3.303(b).  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).

In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the U. S. Court of Appeals for the Federal Circuit held that a three-element test must be satisfied in order to establish entitlement to service connection.  Walker v. Shinseki, 708 F.3d 1331, 1333 (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.  Id.

However, claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b).  See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases").  Specifically, when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show 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."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.  

But the Federal Circuit Court explained that the requirement of showing a continuity of symptomatology after service under subsection 3.303(b) is a distinct and lesser evidentiary burden than the nexus element of the three-part test discussed above:  "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added).  Walker, 708 F.3d at 1338-1339.  Thus, showing a continuity of symptomatology after service is an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation" for chronic diseases.  Id. at 1338; see also id. at 1336 (observing that section 3.303(b) provides a "second route by which a veteran can establish service connection for a chronic disease").  A continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. at 1338.

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the more relaxed evidentiary standard under section 3.303(b), however.  Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Id.  Thus, if the claimed disability is not one of the chronic diseases included in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "the 'nexus' requirement of the three-element test" must be satisfied in order to establish entitlement to service connection benefits.  Id.

Also keep in mind that this notion of continuity of symptomatology since service only applies to conditions that were noted initially in service (else, there is nothing to continue experiencing after service to show the required linkage, i.e., paper trail, between service and current disability).

The lay assertions by the Veteran, his ex-wife, wife, and mother that he has experienced continuous tinnitus since service, if accepted as credible, certainly support the notion that his tinnitus is related or attributable to his service or that it incepted or originated during his service and has persisted during the many years since.  The Board finds, however, that this lay evidence is outweighed by the unfavorable findings of the VA examiners.  In this regard, the Board finds particularly probative the June 2012 VA examiner's finding that the Veteran did not have hearing loss at the time of separation from service and that only seldom does noise exposure cause tinnitus without causing hearing loss.  The Board realizes the Veteran's mother reported that he "lost his hearing" during service, but to the extent her testimony was meant to indicate he had hearing impairment when separating from service, the Board does not find it credible since the Veteran's hearing acuity instead was found to be within normal limits when separating from service in March 1972 and no hearing impairment was noted or even complained of during his initial VA compensation examination after service just a month later, in April 1972.

Additionally, the Board does not find the Veteran's report of continuous tinnitus since service ultimately credible, even accepting its competency.

The competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility and probative value.  See Layno, 6 Vet. App. at 469; accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); 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.").  The Board discounts the weight of evidence it finds not to be credible.  See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). 

In determining whether statements submitted by a Veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").



Notably here, the STRs show the Veteran was specifically seen by medical personnel for treatment following the mine explosion, and was subsequently, specifically assessed for ear-related problems on at least two occasions during the latter half of 1971, yet he did not report ringing in his ears or sounds of crickets chirping or other similar symptoms during any of those medical consultations to in turn suggest he was at the time experiencing any tinnitus.  Similarly, he also did not report any such symptoms during his initial VA compensation examination after service, in April 1972, which, again, was just one month after his discharge.  It is reasonable to expect that, had he in fact been experiencing tinnitus since the July 1971 mine explosion, he would have mentioned it during at least one of those medical visits, particularly during the times that his ear pathology was specifically being assessed.  Additionally, he has not provided any explanation as to why he did not report the problem to medical personnel on those occasions that were far more contemporaneous to that event in service.

The Board cannot summarily reject this lay testimony concerning this out of hand.  Kahana, 24 Vet. App. 428 (indicating the Board cannot make categorical exclusions of competency of lay evidence, such as in this circumstance; rather, there has to be discussion of the reasons and bases for rejecting the lay evidence).  See, too, Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence).

But according to the holding in Kahana, the Board is entitled to draw this negative inference when the STRs do not contain documentary evidence, so long as they are complete or substantially complete in relevant part and it is reasonable to expect the Veteran would at the time have complained of the condition that he now alleges he had in service.  Moreover, although Kahana makes exceptions for disabilities due to injuries sustained in combat, owing to the fact that there is the lesser pleading requirement in that circumstance given the leniency provided by 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d), this does not extend to the treatment the Veteran later had when he was no longer engaging in combat so had time and opportunity to register his complaints of the condition now claimed.

The medical records cited in this instance are highly probative both as to his subjective reports and their resulting objective findings.  They were generated with a view towards ascertaining his then state of physical fitness and are akin to statements of diagnosis or treatment.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S:  AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care).

Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). 

Accordingly, the lack of contemporaneous evidence in this instance diminishes the reliability of the lay statements provided by the Veteran long after the fact that he had tinnitus during his military service in the early 1970s and that it has persisted during the many years since (from his 1971 combat injury onwards).


His former wife attested that she was aware of his tinnitus apparently since 1972.  However, this report was not made until 39 years after 1972 and was furnished to specifically support his claim for VA disability compensation, so there was financial incentive for recounting a history of this condition since his service as opposed to during the many years prior to the filing of this claim when there was not, only instead, as mentioned, the Veteran's motive to tell the truth about the history of this condition in order to receive proper care for it.  Consequently, given that his underlying report of this condition's history is not considered credible, the Board cannot credit the report of his former wife, either, as it is not shown to be any more than derivative of his assertion.   Additionally, the Board notes that the July 2011 letter from his mother does not actually support his contention that he had experienced tinnitus since 1971.  Instead, his mother simply reported that he had "lost his hearing" while in Vietnam and that he currently heard "cricket noises" all the time.  She did not report that he was hearing the cricket noises or otherwise experiencing tinnitus when he returned home from Vietnam.  Accordingly, viewing the evidence as a whole, the Board does not find credible the Veteran's underlying assertion that his tinnitus began in 1971 and has continued up until the present.  Thus, continuity of such symptomatology is not established - even, again, were it an alternative permissible means of attributing his current tinnitus to his service.

In sum, as his report of onset of tinnitus during service and of continuity of symptomatology thereafter is not credible, and as the medical evidence of record weighs squarely against this notion of a nexus between his tinnitus and service, the preponderance of the evidence is against this claim and service connection for tinnitus must be denied.  


Ear Infections

The only medical finding indicative of ear infection during the appeal period is the May 2008 VA urgent care note showing a diagnosis of otitis externa and that the Veteran was prescribed antibiotics.  During the November 2006 VA examination, he reported that he believed that he got infections from water in his ears and that he would dry out his ears with cotton swabs, but otoscopy showed clear ear canals and intact tympanic membranes bilaterally.  No infection was noted during the examination, and no condition involving chronic ear infections was diagnosed.  Similarly, during a February 2008 VA primary care visit, examination showed that the ear canals looked good and that there was no drainage.  The examining physician also noted that he was hesitant to prescribe cipro drops as the Veteran may not have had an infection and the antibiotic could cause resistance if used inappropriately.  Additionally, the June 2012 VA examiner, after examination and claims file review, specifically determined there was no objective evidence of ear infection of either ear on examination and no objective evidence of recurrent ear infections of either ear based on record review.  In so concluding, the examiner specifically indicated his record review had included the May 2008 finding of otitis externa with effusion.  Notably, there is no medical opinion of record contrary to the June 2012 VA examiner's opinion (i.e., an opinion positing the Veteran has a current disability manifested by recurrent ear infections).

The Veteran and his relatives have maintained that he does indeed experience recurrent ear "infections."   However, while they are competent to observe the symptoms he has experienced, they are not also competent to ascribe the symptoms to a particular diagnosis and in turn causally relate the diagnosis to his service, including to any symptoms he experienced while in service.  See Jandreau, 492 F. 3d 1372 (Fed. Cir. 2007).  Moreover, even assuming they have some level of competence in this additional area, their opinions are outweighed by the opinion of the June 2012 VA examiner, a physician, who clearly does have expertise in this subject matter area and who reviewed the record, examined the Veteran personally, and provided her opinion based on this collective body of information.  Consequently, the weight of the evidence is against a finding of a current disability manifested by recurrent ear infections.

The Board is cognizant that the former private treating physician indicated in the September 2012 letter that he had seen the Veteran a number of times during the early 1970s for ear infections and that the Veteran had continued to have problems over the next 15 to 20 years (so suggesting recurrence of them).  However, this only tends to show the Veteran had problems with ear infections up until the early 1990s, at the latest.  It does not also tend to show that he currently or still has a disability manifested by recurrent ear infections, much less as a result or consequence of his military service.

The most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). 

Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability.  Brammer  v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998).  A current disability means a disability shown by competent evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).

Accordingly, in the absence of proof of current disability, there can be no valid claim of entitlement to service connection inasmuch as the Veteran has failed to show the existence of this disability since the filing of this claim, let alone the required attribution of this disability to his military service, including to any ear infections he had in service.  Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000).

Moreover, he cannot establish this required linkage under 38 C.F.R. § 3.303(b) merely by showing continuity of symptomatology since his service because, according to Walker, he is not alleging to have a condition identified as necessarily "chronic" under 38 C.F.R. § 3.309(a).  Thus, his claim must be denied.

Increased (Initial)-Rating Claim

Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.

In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as a "staged" rating.  The Court has indicated this consideration is warranted irrespective of whether the claim concerns an initial or established rating.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  The Board finds, however, that a staged rating is not warranted here as the degree of impairment due to the Veteran's PTSD has not varied significantly during the appeal period.  He is nonetheless entitled to a higher rating for this condition, so in this respect his appeal of this claim is being granted rather than denied.

Where there is a question as to which of two evaluations apply, 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.  All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 4.3.

The Veteran's PTSD has been rated initially as 30-percent disabling under 38 C.F.R. § 4.130, DC 9411.  Pursuant to this diagnostic code, 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 satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 

A higher 50 percent rating is assigned for 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. 

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


The maximum possible 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. 

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.  38 C.F.R. § 4.126.

Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score.  According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), a GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability.  See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995).  However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned.  See 38 C.F.R. § 4.126(a).

When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Service connection for PTSD was granted in a July 2008 rating decision.  A 30 percent initial rating was assigned retroactively effective from December 9, 2005, coinciding with the receipt of this claim.

During a January 2007 VA psychological evaluation, the Veteran reported feelings of depression, fears, loss of emotional control, insomnia, fatigue, social aversion and isolation, poor anger control (with verbal outbursts), a decrease in appetite and weight gain since he had stopped drinking alcohol.  He stated that he was a "basket case" after reducing his alcohol intake six months prior based on a doctor's order.  

He reported combat-related intrusive thoughts and nightmares, avoidance of trauma-related cues (i.e. military-related media and combat movies), hypervigilance with a particular fear of crowds and hyperstartle response, particularly around loud noises (fireworks).  The nightmares had increased in the past few years and the Veteran reported a recurrent nightmare involving driving an armored personnel carrier and having it blown out from under him as a result of hitting a land mine.  

The Veteran reported that his military occupational specialty (MOS) was mechanic and that he was stationed in Vietnam for four months in 1971.  He indicated that while in Vietnam, he received incoming fire and sniper fire.  He also reported the specific trauma involving being blown up in a track from rolling over the land mine.  He noted one incident that particularly affected him involved surviving a rocket attack in his compound only to come out of his bunker to observe a nearby bunker in which soldiers had been hiding and had been hit.  He recalled helping to pull steel beams off of dead bodies.  

The Veteran indicated that his symptoms first appeared after he was medically evacuated out of Vietnam after the armored personnel carrier he was in rolled over a land mine.  He denied any homicidal or suicidal ideation.  

The Veteran had been married two times.  He noted that he had had legal difficulties with his first wife in relation to a concealed firearm.  The reason for divorce was unclear.  The Veteran had married a second time and his current wife was present for the interview.  After discharge from the military, the Veteran worked as a construction worker and a bulldozer operator.  He reported that he was fired from his last job as a result of an incident in which he pulled a weapon he had concealed in his vehicle on another man at a job site.  

The Veteran reported that he had been abusing alcohol since he returned from Vietnam.  He stated that he had stopped drinking alcohol six months prior but after questioning he indicated that he had had one beer during the previous week.   

Mental status examination showed that the Veteran was oriented to person, time and reason for appointment.  Grooming and hygiene were appropriate.  Eye contact was positive and he appeared his stated age.  His affect was appropriate and his mood was dysthymic and tense.  Memory for recent and remote events was intact.  Suicidal and homicidal ideations were denied.  His thoughts were lucid and fluid.  His speech was within normal limits in rate and prosody.  However, it was decreased in volume to a loud whisper.  Intelligence was estimated to be average based on his vocabulary.  Insight into his condition appeared questionable.  Abstract reasoning was intact.  No deficits were noted in his language skills or memory.  The diagnoses were rule out PTSD, major depressive disorder and alcohol abuse.  A GAF score of 50 was assigned.  

During a May 2008 private evaluation performed by a licensed clinical social worker, the Veteran reported feelings of depression and anxiety, loss of feeling and increased and consistent social and personal isolation.  There was a history of violent outbursts and some reported domestic violence.  He had portrayed violent verbal outbursts and admitted to having poor anger management skills.  He was obese, and in very poor physical condition with significant weight gain, which he reported was a bi-product of his decreased alcohol use.  He also admitted that he would periodically backslide from his sobriety and have an occasional drink.  

He was sedentary and spent his time sitting around watching TV and demanding attention from his wife.  She reported that he was stubborn, demanding and isolated.  He had not developed any interest in hobbies, exercise or any form of socializing.  


The Veteran continued to report specific symptoms of PTSD, including combat-related intrusive thoughts and nightmares.  His reported that the memories and nightmares were consistent.  Both he and his spouse reported that any participation in crowd gatherings was extremely stressful.  He continued to experience thoughts of driving an armored personnel carrier and having it blow up from beneath him.  
He was not currently undergoing any treatment.  He reported that VA had offered treatment but the travel to and from the facility would have been a major hardship.  It had also been suggested that he seek alcohol treatment but he again felt that the travel requirement would have created a major hardship.  

The Veteran reported that the trouble with his first marriage had included criminal charges for possession of a concealed weapon.  The Veteran was given three years' probation and time served.  Additional charges were dropped related to another occasion when he possessed a concealed weapon.  

The Veteran's current marriage began in 1999.  The Veteran's wife reported that due to his isolating behavior, he was hard to reach, emotionally dead.  Intimacy was non-existent and there had been 3 separations, the last one lasting about 9 months.  The wife stated that she was concerned that the Veteran was like a ticking time bomb that might someday go off.  

There had been many fights and misunderstandings over the years, including battles over the step-son's presence in the home.  The Veteran would not agree to go out to social gatherings.  This was terribly upsetting to his wife.  
The overall impression was that after losing his ability to work and discontinuing his drinking, and after the decline in his health, the Veteran had resorted to isolating.  He was constantly on edge, agitated and quick to anger.  His history of threats with weapons and violent outbursts continued to be a major social/occupational risk.  His ability to maintain effective relationships had diminished.  He lacked the energy and motivation to establish what was necessary to foster healthy friendships or work relations.  


He also seemed to be unable to move from his home.  The examiner found that his ability to function independently and effectively was questionable.  Without the presence of his wife, he would have been resigned to increased isolation and desperation.  If this state of isolation were threatened, he might portray angry, threatening out-bursts, rendering him potentially harmful to others.  

The examiner noted that the Veteran was fired from his previous job when he threatened a co-worker with a concealed weapon on a construction site.  Some prior employment had included working at an auto dealership or at gas stations but these jobs were labor positions and did not last for any prolonged period of time.  The examiner noted that the Veteran's history of drinking that dated back to his early twenties and expected that the Veteran's current drinking was being minimized.  

Mental status examination showed that the Veteran was oriented to time and place and purpose of the examination.  Grooming and hygiene were appropriate.  He did provide eye contact and did appear to listen and fully participate in the examination process.  His affect was appropriate but he did seem to be slower than his age would indicate.  His short and long term memory was intact.  His speech was within normal range but he presented as quiet and somewhat withdrawn.  His insight regarding the reality of his situation seemed questionable.  Social judgment also seemed to be questionable and denial/resistance was obvious.  There were no deficits in his verbal skills or management of the English language.  The diagnoses were dysthymic disorder and history of alcohol abuse.  A GAF score of 45 was assigned.  

The examiner commented that the Veteran was suffering from a persistent state of depression and isolation.  He isolated daily and disconnected himself from family and normal day to day interactions.  He had persistent intrusive thoughts that caused him to remember the events of his military experience.  His sleep pattern was disturbed.  He was easily agitated and could be potentially dangerous if provoked.  His history was full of angry and threatening behaviors due to his desire to isolate.  He lacked energy daily and relied on his wife to make simple decisions.  He had become a dependent.  He did seem motivated to deal with his troubles.  This motivation would be complicated by cost, time, availability and travel.   

In June 2008 argument, the Veteran's representative indicated that the May 2008 examination report showed a GAF score of 45 and that a score from 41 to 50 is indicative of serious symptoms, which in turn warranted assignment of a 70 percent rating.  The representative cited case law and the AMA's Guide to Evaluation of Permanent Impairment for support of this argument.  

At a June 2008 VA psychological evaluation, the Veteran reported experiencing intermittent depression, irritability and anxiety since his unemployment in 2005.  He reported that the frequency of these symptoms had been nearly every day since 2005.  He was unable to give an estimate of the average duration of symptoms during a day.  He denied experiencing anhedonia.  He indicated that he had dropped out of high school because he was struggling in school.  He did not have a graduate equivalency diploma (GED).  

The Veteran had been married to his second wife for 9 years and they had been separated three times.  The Veteran attributed the separations to the couple having a lot of trouble with the children.  The Veteran described the current status of the marriage as fair.  His wife was upset that the Veteran did not have a better relationship with her son from a previous marriage, however.  Records reflected that she had also complained that he was socially withdrawn since he stopped drinking.  He had close attachments with his two daughters from his first marriage.  He reported that he had one close friend and two to three additional people with whom he had social contact.  He described his leisure pursuits as watching TV and doing yard work.  

Mental status examination showed that the Veteran was clean, neatly groomed and appropriately and casually dressed.  His speech was unremarkable, spontaneous, clear and coherent.  His attitude was cooperative and attentive.  His affect was constricted and he described his mood as a little antsy but not too bad.  His attention was intact and he was able to do serial 7s but he was not able to spell a word forward and backward.  His thought processes and thought content were unremarkable and he did not have any delusions.  He understood the outcome of his behavior and his intelligence was average.  He partially understood that he had a problem.

He reported sleeping four hours per night and that he had poor energy.  He did report having panic attacks and his impulse control was deemed to be poor.  He was able to maintain minimum personal hygiene.  His memory was found to be normal.  The Veteran reported intense psychological distress to exposure to internal or external cues that symbolize or resembled aspects of the trauma, efforts to avoid thoughts, feeling or conversations associated with the trauma, efforts to avoid activities, places or people that aroused recollections of the trauma, feelings of detachment or estrangement from others.  He also reported difficulty falling or staying asleep, irritability or outbursts of anger and hypervigilance.  The symptoms were chronic.

The Veteran's re-experiencing symptoms included intrusive memories (albeit not recently), upsetting memories triggered by recent events at least one time in the past week, triggered by news coverage of the Iraq war, nightmares (albeit not recently), marked avoidance of thinking or talking about the trauma, avoiding activities that trigger upsetting memories of the trauma (fireworks and some war movies) and moderate detachment.  He endorsed poor sleep, only four hours per night, irritability/anger almost daily, mild impairment in concentration, hypervigilance in feeling uncomfortable in crowds and exaggerated startle response, most recently a few weeks prior.  The onset of the full spectrum of PTSD appeared in 2005 after the Veteran stopped working.  The Veteran was capable of managing his financial affairs.  He indicated that he had retired from his job in construction in 2005 because of his left knee and because his health had more generally declined.  The diagnosis was PTSD, chronic, and a GAF score of 59 was assigned.  In regard to the Veteran's functional status and quality of life, the examiner commented that the Veteran had most recently worked in 2005, his wife had complained that he was socially isolative and he had one close friend and infrequent contact with 2 to 3 people.  


The examiner noted that while the Veteran was fired from his last job for pointing a gun at a co-worker during an argument, he primarily attributed his unemployment to multiple physical conditions.  The examiner found that he was not unemployable due to PTSD.  His problems with social functioning were a function of PTSD.  The examiner found that the Veteran's PTSD resulted in occupational and social impairment with occasional decrease in work efficiency with intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms but with generally satisfactory functioning with routine behavior, self-care and conversation normal.     

During a September 2009 VA psychiatric examination, the Veteran reported that he was then currently taking lorazepam, an anti-anxiety medication.  He was not receiving any other therapy.  He indicated that he would occasionally wake up in a panic, with the last episode of this occurring 10 days prior and that the medicine was ineffective in helping with this.  The Veteran indicated that he and his wife had had to sell their property and had to vacate the premises by March 2010.  

The Veteran indicated that he did have family members who would visit him and he enjoyed visiting with them.  He also had some other social contacts and the previous night, he had gone out with a friend.  His daily activities entailed staying in the house and doing minimal tasks.  He reported no history of suicide attempts and no history of violence or assaultiveness.  

Mental status examination showed that he was clean and casually dressed.  His speech was spontaneous.  The Veteran was uncooperative with mental status examination questions such as serial 7s and spelling a word backwards.  He indicated that he declined to attempt these tasks because he was dyslexic.  His affect was appropriate and his mood was good.  His attention was intact and adequate for interview purposes.  

Mental status examination showed that he was fully oriented and his thought process was logical, linear and goal-directed.  His thought content was unremarkable and he did not exhibit any delusions.  He understood the outcome of his behavior and exhibited average intelligence.  He understood that he had a problem.  He reported difficulty falling asleep and indicated that he would sometimes wake up in a panic.  This occurred with no particular frequency, tending to come in spurts.  He also tended to have to get up during the night to urinate, with some disruption of sleep due to this.  He did not experience hallucinations and did not exhibit inappropriate behavior.  He interpreted proverbs appropriately.  He showed good impulse control and did not have episodes of violence.  He was able to maintain minimum personal hygiene and did not have any problem with his activities of daily living (ADLs).

The Veteran's recent, remote and immediate memory was intact and he recalled two out of three items after several minutes with one mild error.  The Veteran did not report ritualistic/obsessive behavior, panic attacks, homicidal thoughts or suicidal thoughts.  His impulse control was deemed to be good and he had not exhibited episodes of violence.  

The Veteran's re-experiencing problems included intense psychological distress at exposure to internal or external cues that symbolized or resembled an aspect of the traumatic event and physiological reactivity on exposure to internal or external cues that symbolized or resembled an aspect of the traumatic event.  His avoidance problems included efforts to avoid thoughts, feelings or conversations associated with the trauma, efforts to avoid activities, places or people that aroused recollections of the trauma and a feeling of detachment or estrangement from others.  The Veteran's problems with increased arousal included difficulty falling or staying asleep and hypervigilance.  

The examiner noted that the Veteran reported an occasional panic-like feeling upon awakening but he had no recall of nightmares.  He experienced some distress or sadness concerning current Operation Iraqi Freedom Veterans.  He reported mild avoidance behaviors, sleep impairment and hypervigilance.  The Veteran did not show any difficulty in managing his finances.  The examiner diagnosed the Veteran with PTSD, chronic, and assigned a GAF score of 65.  The examiner found that the Veteran exhibited PTSD signs and symptoms that were transient or mild and that involved decreased work efficiency and decreased ability to perform occupational tasks only during periods of significant stress.  

The examiner commented that the Veteran reported social detachment.  There was no evidence of functional impairment found occupationally related to PTSD in the absence of the claims file.  The PTSD symptoms alone would not impact physical or sedentary tasks or cause any functional impairment occupationally.  The Veteran had not worked in five years and based this primarily on falling and re-injuring himself and secondarily on interpersonal difficulties with a co-worker.  

An April 2010 VA initial psychiatric assessment shows that the Veteran reported depressed and anxious mood and isolation.  He indicated that his sleep was currently not good as he generally went to bed about 3 to 4 Am and slept for a few hours at a time, waking regularly.  He would awake soaking wet with no recall of specifics of dreams.  The Veteran reported that he interacted with his wife, mother and brother but few others.  His wife reported that he was irritable and controlling of her.  The Veteran reported he was currently abstinent.  He reported that he had a good relationship with his children, siblings and his mother but a poor relationship with his father.  The Veteran reported being in turmoil all the time in part related to military trauma.  He indicated that if heard helicopters he would get really emotional and that he could not watch TV due to military content.  

Mental status examination showed that the Veteran was initially restless but was calmer by the end of the session.  His mood was anxious and his affect was mood congruent.  He denied suicidal or homicidal ideation.  Memory testing showed he recalled only 1 out of 3 words after 5 minutes.  Insight was adequate and the Veteran was found to be willing to seek treatment and to have good support from his wife.  The diagnosis was rule out PTSD, chronic, and a GAF score of 50 was assigned.  

Follow-up VA progress notes from June 2010 to December 2010 show that the Veteran received ongoing mental health treatment.  In June 2010, the Veteran was noted to be exhibiting a moderately depressed mood with a somewhat restricted and congruent affect.  In August 2010, the Veteran reported that he was probably somewhat better since he was sleeping better and was not feeling as aggressive.  

In October 2010, he reported that his mood was about the same and that if he did not get at least 8 hours sleep, he did not feel well.  In December 2010, the Veteran reported that he had thrown out his medication because his wife had been complaining that he slept too much.  He acknowledged that this was not smart and medication was restarted.  The Veteran's mood was moderately depressed and his affect was somewhat restrictive and congruent.    

At a January 2011 VA examination, the Veteran reported that he had stopped taking psychiatric medication due to it causing muscle soreness and flu like symptoms.  He was not receiving any other type of therapy.  He reported a constantly depressed mood ranging in severity from mild to severe, which had been exacerbated since he stopped drinking.  He also indicated that he had become more isolated since he stopped using alcohol.  He indicated that his marriage was currently "rough" because he was sober and his wife was still drinking.  

The Veteran denied having friends and socialized mainly with his family.  He reported that he had stopped socializing when he became sober.  He indicated that his daily activities consisted of "puttering around" and watching TV   He reported that he had had a suicide attempt during his first marriage.  

Mental status examination showed that the Veteran was clean and casually dressed.  His speech was unremarkable, clear and coherent.  He was cooperative and attentive to the examiner.  His affect was normal and his mood was dysphoric.  He was not able to spell a word forward or backward and declined to attempt serial 7s.  The Veteran's attention was within normal limits during the evaluation.

The Veteran was fully oriented.  His thought process and thought content was unremarkable and there were no delusions.  The Veteran understood the outcome of behavior and his intelligence was below average.  He understood that he had a problem.  The Veteran had sleep impairment but used a CPAP machine.  He was sleeping approximately 7 hours per night.  He was not experiencing any hallucinations or delusions and did not exhibit any inappropriate behavior.  He provided a literal interpretation of proverbs.  He did not have any obsessive/ritualistic behavior but did report panic attacks.  He noted that these had returned after he stopped taking medication and that he experienced about one per week, resulting in him having to get out of bed at night.  He was not experiencing any suicidal or homicidal thoughts.  His impulse control was deemed to be fair and he had had prior episodes of violence.  He was able to maintain minimum personal hygiene and did not have any problems with activities of daily living.  

The Veteran's remote and recent memory was mildly impaired and his immediate memory was normal.  He was able to recall 2 out of three words after several minutes.  Persistent re-experiencing problems included intense psychological distress at exposure to internal or external cues that symbolized or resembled an aspect of the traumatic event.  His avoidance problems included efforts to avoid thoughts, feelings or conversations associated with the trauma, markedly diminished interest or participation in significant activities and a feeling of detachment or estrangement from others.  The Veteran's problems with increased arousal included irritability or outbursts of anger and difficulty concentrating.  

For all of the Veteran's symptoms, the frequency was daily to weekly and the severity was moderate to severe.  He reported having nightmares based on his wife's report; he did not recall having them.  He reported developing strategies to assist him in dealing with his anger and irritability, which he experienced several times a week with mild severity.  He was not shown to have any problem managing his finances.  He had been retired since 2004 and indicated that he had stopped working due to his left knee, poor health and an incident when he had pulled a gun on a co-worker and was subject to legal charges.  The diagnosis was PTSD and a GAF score of 60 was assigned.  

The examiner commented that there were PTSD signs and symptoms that were transient or mild and decreased work efficiency and ability to perform occupational tasks only during periods of significant stress.  The examiner noted that the Veteran reported having exhibited anger in his relationship with his wife and also reported exhibiting memory impairment.  The examiner found that it would be resorting to speculation to conclude that these difficulties were related to the service-connected PTSD, however.  

During a June 2012 VA psychological evaluation, the examiner diagnosed the Veteran with PTSD and alcohol dependence in full remission per the Veteran's report.  She noted that his current psychosocial and environmental problems included chronic pain and financial stress.  She indicated that the Veteran's level of occupational and social impairment was best described as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  

The examiner noted that the Veteran continued to reside at home with his wife of 11 years.  He reported some difficulty relating with his wife due to their prior alcohol dependence.  The Veteran had two daughters that lived within 50 miles of him with whom he spent time.  He also tinkered in the yard with the family vehicles and watched TV during the day.  He reported a restriction in his activities due to his limited mobility.  

It was noted that the Veteran attended school until the 11th grade when he left due to poor academic performance and enlisted in the service.  After his discharge, the Veteran reported being employed as a mechanic for two years.  He left that position in 1974 when gas prices escalated and started his own business clearing lots and operating heavy equipment for 5 to 6 years.  Then he became a foreman for an underground utility contractor where he was employed until 2004.  He reported having a "run in" with an employee causing his discharge.  Previously it had been reported that he had pulled a gun on a co-worker.  He had not been employed since that time.  

The Veteran had been arrested in the 1980s for unpaid child support and threatening to kill someone.  He was also arrested in 2004 for aggravated assault.  He reported some prior incidents of domestic violence with his ex-wife, which was alcohol-related.  He had a prior history of alcohol dependence and reported being sober for the past year.  He reported episodes of relapses in the past.  He indicated that his wife continued to drink at home but that she was doing better.  

The examiner noted that the Veteran's PTSD was characterized by recurrent and distressing recollections of the stressor event, including images, thoughts or perceptions, inability to recall an important aspect of the trauma, difficulty concentrating and hypervigilance.  The Veteran's symptoms included depressed mood, anxiety and chronic sleep impairment.  

The examiner commented that the Veteran was casually dressed and well-groomed.  His speech was clear and coherent and his thought processes were logical and goal directed.  He related appropriately with the examiner.  The Veteran experienced depressed mood most of the time, which varied in severity and anxiety quite a bit of the time.  He denied having any suicidal or homicidal ideation or intent.  He reported frequent intrusive memories, which increased his depression.  He reported having 2 or 3 nightmares in the past month but did not recall the content.  His wife informed him when he had bad dreams.  He did not report flashbacks and did report waking up in a panicked state once in the past month.  

He indicated that he avoided thinking or talking about the trauma, avoided TV programs and other activities on Memorial Day, had difficulty recalling 50 percent of the details of the trauma, including names of friends.  He also reported being unable to physically do previously enjoyable activities and that he was leery of others with a reduction in socialization due to recent sobriety and a disease to avoid relapsing leading to a tendency to stay home.  He reported a sense of a foreshortened future as a result of his heart problems.

The Veteran indicated that he slept about 7 to 8 hours per night, which sometimes was sufficient.  He noted that he could stay awake for up to a day at a time if he did not take medication.  He noted that he had been irritable/angry a couple of times in the past month but only to a mild degree.  He indicated that he kept himself reigned in.  He reported problems with concentration related to his depressed mood and also reported significant hypervigilance, indicating that he was "too aware."  He also reported an exaggerated startle response, twice in the last month, noting that these were brief reactions.

The examiner commented that although the Veteran continued to experience PTSD as evidenced by his responses on the clinician administered PTSD scale, it appeared that these symptoms were of mild to moderate severity.  The Veteran was able to maintain consistent, gainful employment until 2004 when he reportedly was arrested for pulling a firearm on a co-worker.  He did not currently report any significant symptoms of anger or irritability, however, or any recent episodes of anger dyscontrol.  Consequently, it did not appear that the Veteran's PTSD would impact his ability to maintain gainful employment.  A GAF score of 60 was assigned.  

VA mental health treatment records from April 2012 to March 2013 show ongoing treatment for PTSD.  In April 2012, the Veteran reported that he was tearful quite a bit about past military experiences.  He continued to report mood, sleep and pain as symptoms that caused him stress.  Mental status examination showed a flat affect but was otherwise unremarkable.  The pertinent diagnosis was PTSD and a GAF score of 59 was assigned.  In June 2012, the Veteran reported feeling disoriented and anxious during recent compensation examinations.  He reported more recent difficulty with sleep.  Mental status examination showed an anxious mood but was otherwise unremarkable.  The pertinent diagnostic assessments were mood disorder and history of PTSD.  

In December 2012, the Veteran reported that he was stressed and was not leaving the house much.  He indicated that the stress was due to poor finances after buying a home for his mother to live.  Also, he felt stress due to his wife's son being incarcerated for a drug offense.  Mental status examination was unremarkable and the pertinent diagnosis was rule out PTSD.  In March 2013, the Veteran continued to report not having a good memory and was concerned that if his memory worsened, he would not remember where he was going when out somewhere.  He described going to a room and forgetting why he had gone there or forgetting the name of a former private primary care provider.  He reported that his mood was mostly the same.  He agreed he was minimally social but did not voice any significant complaint about this.  Mental status examination was unremarkable and the diagnosis was PTSD.  A GAF score of 59 was assigned.    

Although some VA examiners have characterized the Veteran's limitation of functioning due to his PTSD as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, examining the evidence as a whole the Veteran's level of functioning throughout the rating period is best described as occupational and social impairment with reduced reliability and productivity.  Notably, the Veteran has been specifically found to have two symptoms compatible with this level of functioning, disturbances of motivation and mood and difficulty in establishing and maintain effective work and social relationships.  Additionally, he has at least reported panic attacks, which can also be compatible with this impairment level.  Thus, a higher, 50 percent rating is warranted for the Veteran's PTSD for the entire appeal period.

Occupational and social impairment with deficiencies in most areas has not been shown.  In this regard, the Veteran is generally shown to retain significant function in the areas of family relations, judgment and thinking.  In the area of family relations, while the Veteran has certainly had significant marital difficulties, including separations, he has been able to continue his marriage for the full extent of the appeal period.  In addition, he is shown to have good relationships with his natural born children, with his mother and with his siblings.  Thus, he is not shown to have a deficiency within the meaning of the criteria for assigning a higher, 70 percent rating.  In regard to thinking, the June 2012 VA psychological examiner specifically found that the Veteran's thought processes were logical and goal directed, the January 2011 VA examiner found that the Veteran's thought process and content was unremarkable and the September 2009, June 2008 and January 2007 VA examiners made similar findings.  The Veteran's VA mental health treatment records also do not show any deficiencies in thinking, with the more recent ones specifically showing cognitive functioning within normal limits.  The May 2008 private examiner's report could be viewed as suggesting that the Veteran may experience a deficiency in thinking (within the meaning of the criteria for assigning a higher, 70 percent rating).  However, the May 2008 report is generally inconsistent with all of the other medical evidence of record, as it generally indicates somewhat lower level functioning.  Accordingly, as this lower level functioning is generally not corroborated at any other point in time during the appeal period and is specifically not shown by the VA treatment records, which include assessment over periods of time, rather than on just one occasion, the Board deems the May 2008 report as including only isolated findings.  Therefore, the weight of the evidence is against a finding that the Veteran does not have a deficiency in thinking (and is more broadly against a finding that the Veteran has the lower level of functioning indicated by the May 2008 report).  

Similarly, the evidence does not show that the Veteran has a deficiency in judgment within the meaning of the criteria for assigning a higher, 70 percent rating.  In this regard, the VA treatment records from April 2012 to March 2013 specifically show that the Veteran's judgment was assessed as adequate.  Also, the April 2010 VA initial psychiatric assessment shows that the Veteran's judgment included being able to understand the treatment plan and the follow up notes from June 2010 to December 2010 show that judgment was assessed as either adequate or good.  Additionally, the January 2011, September 2009 and June 2008 VA examiners specifically found that the Veteran's judgment included understanding the outcome of his behavior and did not note any deficiencies in judgment compatible with assignment of a higher, 70 percent rating.  The January 2007 VA examiner and the May 2008 private examiner did find that the Veteran's social judgment appeared or seemed questionable but given the indefiniteness of these conclusions, and given that the Veteran's judgment has been found to be at least adequate when assessed over multiple data points over the course of actual VA treatment, the Board finds that the weight of the evidence is against a finding that the Veteran has had a deficiency in judgment during the appeal period.  Accordingly, as deficiencies in family relations, thinking and judgment are not shown, occupational and social impairment with deficiencies in most areas is not shown and a higher 70 percent rating is not warranted.  

The Board also notes that the Veteran has generally not exhibited symptomatology compatible with a higher, 70 percent rating during the appeal period.  In this regard, he is not shown to have suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; spatial disorientation; neglect of personal appearance and hygiene and inability to establish and maintain effective relationships.  Notably, while the Veteran certainly has difficulty with relationships, he is not shown to be unable to establish and maintain them as shown by his positive relationships with a number of family members.  The Veteran is also not shown to have near continuous panic or depression affecting the ability to function independently, appropriately and effectively.  While he does apparently suffer some degree of panic, and clearly suffers from depression, the panic is not shown to be "near continuous" and neither the panic nor the depression is shown to rise to the level of preventing the Veteran from functioning independently, appropriately and effectively within the meaning of the rating criteria, as exemplified by his ability over the rating period to maintain his marriage and other family relationships, to maintain his activities of daily living, to retain the ability to manage his finances and to not have engaged in any seriously inappropriate behavior.  Additionally, although the Veteran has clearly suffered from impaired impulse control in the past, it does not appear that he has lost control to the point of being violent during the appeal period.  (The record does contain a mention of an aggravated assault occurring in 2004 but even assuming this is accurate, it predates the appeal period).  Moreover, while the Veteran does appear to have difficulty in adapting to stressful circumstances, given that other symptomatology compatible with a higher, 70 percent rating are not present (aside from perhaps some degree of impairment of impulse control that has not lead to violence) and more importantly, given that deficiencies in most areas are not shown, his underlying symptomatology does not provide a basis for assigning a higher, 70 percent rating.  

The Board has also considered the GAF scores assigned during the appeal period in assigning a rating for the Veteran's PTSD.  A GAF score between 61 and 70 generally indicates mild symptoms (e.g. depressed mood and insomnia) or some difficulty in social, occupational or school functioning but generally functioning pretty well.  GAF scores between 51 and 60 tend to indicate moderate symptoms (e.g. flat 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 from 41 to 50 tend to indicate 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) and GAF scores between 51 and 60 tend to indicate moderate symptoms (e.g. flat 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).  Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (1994).

In this case at hand, the GAF scores predominantly have been at least 50 or higher, indicating functioning that mostly is in the mild and moderate range or, at worst, just bordering on being in the severe range.  Such findings on the whole are compatible with assignment of a 50 percent rating and no greater rating.  Although the May 2008 private examiner did assign a lower score of 45, once again, the Board finds that was an isolated finding, so an aberration of sorts, and that the weight of the evidence indicates the Veteran has functioned at a higher (i.e., 50-percent disabling) level over the course of the appeal period.  Additionally, considering the GAF scores in light of his overall symptomatology and levels of deficiency indicates that assignment of the 50 percent rating is appropriate.  See 38 C.F.R. § 4.126(a).  The vast majority of his GAF scores have been appreciably higher than the score of 45 on that particular instance, so it cannot be said that it is truly representative of his overall social and occupational functioning.

The Board also has considered whether his claim for an increase in the rating for his PTSD should be referred for consideration of an extra-schedular evaluation, and has concluded that no such referral is warranted during the appeal period.  As explained, his PTSD symptoms, including his depression, anxiety, panic attacks, impaired impulse control, isolating behavior, difficulty with crowds, sleep disturbance, nightmares, intrusive memories, exaggerated startle response, disturbances of motivation and mood, and difficulty in establishing and maintain effective work and social relationships is fully contemplated by the pertinent diagnostic criteria.  There is nothing in the record suggesting his PTSD disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards.  See, e.g., Thun v. Peake, 22 Vet. App. 111 (2008).



ORDER

The claim of entitlement to service connection for tinnitus is denied.

The claim of entitlement to service connection for chronic, recurrent ear infections also is denied.

However, a higher 50 percent initial rating is granted for the PTSD, subject to the statutes and regulations governing the payment of VA compensation.


REMAND

The Veteran has claimed entitlement to secondary service connection for a right ankle disorder, alleging that his April 2006 right ankle fracture occurred as a result of his service-connected left knee giving out and causing him to fall.  Pursuant to the Board's prior March 2012 remand, the Veteran was afforded a VA compensation examination in relation to this claim in June 2012.  During the examination the examiner found that he could not resolve the question as to the likelihood that the Veteran's left knee disability had caused or aggravated the right ankle disability without resorting to mere speculation.  The examiner commented that the medical records did not reflect that the Veteran had reported to examining providers at the time of his fall that he had fallen because of his 
service-connected left knee disability.  Thus, whether the fall resulting in the right ankle fracture was specifically due to his service-connected left knee disability or merely an accident was unknown.

The Board however notices that, although the initial April 2006 VA treatment records relating to the fracture simply indicate the Veteran had suffered a fall and do not indicate how the fall had occurred, during an April 13, 2006 VA cardiology visit he affirmatively reported that just one week previously his knee had given out, resulting in him twisting his right ankle.  So given this discrepancy between the examiner's observation and the evidence of record, another remand is required for provision of an addendum opinion by the June 2012 VA examiner that addresses the potential etiology of the Veteran's right ankle disability in light of his near contemporaneous report concerning the reason that he fell seemingly implicating his service-connected left knee disability.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided).  See also 38 C.F.R. § 4.2 (indicating it is incumbent on rating personnel to return an inadequate examination or opinion for correction).

Regarding the claim for a TDIU, in this decision the Board has granted a higher 50 percent initial rating for the PTSD.  Consequently, the Veteran now meets the schedular criteria of 38 C.F.R. § 4.16(a) for a TDIU as he has one disability rated as at least 40-percent disabling (i.e., his PTSD is now rated at 50%) and sufficient additional disability to bring the combined rating for his service-connected disabilities to at least 70 percent (since his diabetes is rated at 20% and his left knee disability is rated at 10% for arthritis with an additional 10% for instability).  See 38 C.F.R. § 4.25 (VA's Combined Ratings Table).  Thus, on remand, this claim for a TDIU must be reassessed given the new disability rating picture.

This claim for a TDIU is also inextricably intertwined with the claim for service connection for a right ankle disability.  See Harris v. Derwinski, 1 Vet. App. 180 (1991) (indicating claims are "inextricably intertwined" when they are so closely tied together that a final decision concerning one of the claims cannot be rendered until a decision on the other).  See also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996); Hoyer v. Derwinski, 1 Vet. App. 208 (1991); and Holland v. Brown, 6 Vet. App. 443, 446 (1994) (collectively indicating these types of claims should be considered concurrently to avoid piecemeal adjudication of claims with common parameters).  Thus, the TDIU claim must also be remanded on this basis.


Additionally, the Veteran's attorney has submitted a number of reports from vocational experts tending to indicate the Veteran is unemployable due to his service-connected disabilities, in conjunction with his advanced age.  These reports conflict with the recent findings of June 2012 VA examiners, which tend to indicate that the service-connected disabilities do not preclude employability.  Given this conflict, on remand, the Veteran should be scheduled for a VA examination by a psychiatrist or other appropriate medical professional to provide a medical opinion as to whether the Veteran is unemployable due to his service-connected disabilities.  In formulating this opinion, the examiner may consider the Veteran's prior work experience and training and educational attainment but not his advancing age and disabilities affecting his employability that are not service connected.

Prior to affording the Veteran this employability examination, the RO/AMC should obtain all records of VA treatment or evaluation for the Veteran's service connected disabilities since October 2012.  38 C.F.R. § 3.159(c)(2).  See also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA has constructive, if not actual, notice of the existence of these additional records since generated and maintained within VA's healthcare system, even if not physically in the file).

Accordingly, these remaining claims are REMANDED for the following additional development and consideration:

1.  Obtain all records of VA treatment or evaluation for the Veteran's service-connected disabilities since October 2012.  Since these records are in the custody of a Federal department or agency - namely, VA - the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2), so make as many attempts to obtain these records as this VA regulation requires.  Also appropriately notify the Veteran if unable to obtain these records.  38 C.F.R. § 3.159(e)(1).

2.  Return the claims file to the June 2012 VA compensation examiner for supplemental comment (i.e., an addendum opinion) regarding the likelihood (very likely, as likely as not, or unlikely) that the Veteran's right ankle disability is secondarily related to his service, as either caused or aggravated by his already service-connected left knee disability.  In formulating this opinion, the examiner should specifically consider the records of VA treatment received by the Veteran soon after his right ankle fracture occurred, including especially the record of the April 13, 2006 VA cardiology visit, along with his June 2012 VA examination report, the prior November 2006 VA examination report and any other information deemed pertinent.

To reiterate, although the initial April 2006 VA treatment records relating to the fracture simply indicate the Veteran had suffered a fall and do not indicate how the fall had occurred, during the April 13, 2006 VA cardiology visit he affirmatively reported that just one week previously his knee had given out, resulting in him twisting his right ankle.  So given this discrepancy between the examiner's observation during the June 2012 examination and the evidence of record, the June 2012 VA examiner needs to again try and comment on the potential etiology of the Veteran's right ankle disability in light of his near contemporaneous report concerning the reason that he fell seemingly implicating his service-connected left knee disability.

The examiner must discuss the underlying rationale for this supplemental medical opinion, if necessary citing to specific evidence in the file.  

If, for whatever reason, the June 2012 VA examiner is unavailable to provide this addendum opinion, then have someone else comment that is qualified to make this necessary additional determination.  In this eventuality, however, the Veteran may need to be reexamined, but this is left to the designee's discretion.

3.  Schedule the Veteran for a VA examination by a psychiatrist, or other appropriate medical professional, concerning whether the Veteran's service-connected disabilities - PTSD (now rated higher), diabetes and left knee disability render him incapable of obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison.

*If additional examinations are needed to reassess the severity of the PTSD, diabetes and left knee disability to make this determination, then have the Veteran undergo these additional examinations.

Prior to arriving at an overall conclusion, the VA examiner should review the claims file, including the VA treatment records, VA examination reports, private mental health assessments, any private medical records and the private vocational assessments of record (including assessments from August 2008, with a September 2008 addendum, from January 2010, with a May 2010 addendum, and from May 2012.  

Only the Veteran's service-connected disabilities are to be considered in making this determination of employability, not his advancing age or occupational impairment that, instead, is attributable to disabilities that are not service connected.  Consideration also may be given to his level of education, special training, and previous work experience in arriving at a conclusion.

There must be discussion of the underlying rationale of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file.

4.  Ensure the examination reports and opinions contain responses to all of the questions posed.  If not, take corrective action to avoid another remand.  38 C.F.R. § 4.2.

5.  Then readjudicate these remaining claims in light of this and all other additional evidence.  If these claims continue to be denied, send the Veteran and his attorney another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these remaining claims.

The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).


These claims 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).



______________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs