Citation Nr: 1324704 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 09-46 928A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied the Veteran's claims. In March 2012, a Board hearing was held at the Portland RO before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the claims folder. The Board notes that evidence has been associated with the Veteran's claims folder included with a waiver of RO consideration. The Veteran filed a claim of entitlement to service connection for PTSD. The United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim of entitlement to service connection for a psychiatric disability, he is seeking service connection for any acquired psychiatric disability, regardless of how those symptoms are labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) [a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction his mental condition, whatever it is, causes him]. The Veteran referenced symptoms of depression during his hearing before the undersigned. As such, the Board finds that the issue currently on appeal is more appropriately characterized as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. In December 2012, the Board remanded the Veteran's claims. The Appeals Management Center (AMC) continued the previous denial of the claims in an April 2013 supplemental statement of the case (SSOC). Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. FINDINGS OF FACT 1. The evidence of record is against a finding that the Veteran engaged in combat, or served in or around Vietnam during the Vietnam War. 2. There is no credible supporting evidence of an in-service stressor. 3. The evidence of record is against a finding that the Veteran has a current acquired psychiatric disorder, to include PTSD, that is related to his active duty military service. 4. The Veteran's service-connected disabilities are the following: tinnitus, evaluated as 10 percent disabling; and a bilateral hearing loss disability, evaluated as noncompensable (zero percent disabling). 5. The competent and probative evidence of record does not demonstrate that the Veteran's service-connected disabilities, alone, render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder, to include PTSD, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f), 3.307, 3.309 (2012). 2. The criteria for TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, to include PTSD, as well as entitlement to TDIU. In the interest of clarity, the Board will discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in December 2012, the Board remanded these claims and ordered the agency of original jurisdiction (AOJ) to provide proper notice to the Veteran under the Veterans Claims Assistance Act of 2000 (VCAA) and attempt to corroborate the Veteran's claimed in-service stressors with the appropriate service organizations. The Veteran's claims were then to be readjudicated. Pursuant to the Board's remand instructions, the Veteran was provided sufficient VCAA notice. This will be discussed in greater detail below. Additionally, the AMC attempted to corroborate the Veteran's claimed stressors with the appropriate service organizations. The Veteran's acquired psychiatric disorder and TDIU claims were readjudicated via the April 2013 SSOC. Accordingly, the Board's remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice, to include notice with respect to the effective date and disability rating elements of the claim, by letters mailed in September 2007 and January 2013. Although the January 2013 VCAA letter was provided after the initial adjudication of the claims, the Board finds that the Veteran has not been prejudiced by the timing of this letter. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the AMC readjudicated the Veteran's claims in the April 2013 SSOC. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. The Board notes that, pursuant to the December 2012 remand, the Veteran was to be informed of the updated codification of 38 C.F.R. § 3.304(f), to include establishing service connection for PTSD based on fear of hostile military or terrorist activity and that in some circumstances, a veteran's lay testimony may establish the occurrence of a claimed in-service stressor. However, a review of the record does not reveal that such notice has yet been provided to the Veteran. In any event, the Board finds that the Veteran has not been prejudiced by this lack of notice and may proceed with adjudication of his acquired psychiatric disorder claim. Pertinently, the Veteran undoubtedly understood the need for such evidence, as is demonstrated by his citation of the updated changes to 38 C.F.R. § 3.304(f), to include the full text of the regulation, in his May 2013 statement. This demonstrates actual knowledge of the regulation in question. Accordingly, it does not appear that another VCAA notice letter would lead to the submission of additional evidence. See generally Dalton v. Nicholson, 21 Vet. App. 23 (2007) [holding that claimant was not prejudiced by RO's failure to provide VCAA notice where the claimant, through counsel, demonstrated actual knowledge of the information and evidence necessary to substantiate his claim]. There is no prejudice in the Board proceeding. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims and there is no reasonable possibility that further assistance would aid in substantiating these claims. The evidence of record includes statements from the Veteran and other individuals, the Veteran's service treatment records, Social Security Administration (SSA) records, and postservice VA and private treatment records. As noted above, the Veteran was afforded a hearing before the undersigned VLJ during which he presented oral argument in support of his service connection and TDIU claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing and specifically discussed the Veteran's acquired psychiatric disorder and suggested the submission of evidence that would be beneficial to the Veteran's claims, namely evidence pertaining to nexus between the Veteran's PTSD and his claimed in-service stressors as well as his unemployability. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the criteria necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the criteria necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board notes that the Veteran was not provided an examination and nexus opinion with regard to his acquired psychiatric disorder claim. Under 38 C.F.R. § 3.159(c)(4) (2012), VA will provide a medical examination or opinion if the information and evidence of record does not contain sufficient medical evidence for VA to make a decision on the claim but: (1) contains competent lay or medical evidence that the claimant has a current diagnosed disability, or persistent or recurring symptoms of disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board further finds that there is sufficient evidence to decide this claim, and that further medical examination or opinion is not necessary to decide the claim for service connection for an acquired psychiatric disorder. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, as discussed in further detail below, the competent and probative evidence does not document a verifiable in-service stressor or in-service disease or injury. Accordingly, a VA examination is not warranted. The facts of this case are different than the facts in Charles v. Principi, 16 Vet. App. 370 (2002), in which the Court held that VA erred in failing to obtain a medical nexus opinion where evidence showed acoustic trauma in service and a current diagnosis of tinnitus. Significantly, in this case, there is no competent and probative evidence which supports credible evidence of an in-service stressor or in-service disease or injury. The Board also notes that the Veteran was not provided an examination and medical opinion with regard to his TDIU claim. However, in the present claim, the Board finds that there is sufficient evidence of record to evaluate the Veteran's claim. Specifically, as will be discussed below, the record does not indicate that the Veteran's service-connected disabilities, namely his bilateral hearing loss disability and tinnitus, render him unable to secure and follow substantial gainful employment such that referral on an extraschedular basis is warranted. Pertinently, neither the Veteran nor his representative has contended that a VA examination is necessary for his TDIU claim. Moreover, the Veteran has not contended that his bilateral hearing loss disability and tinnitus render him unable to secure and follow substantial gainful employment. Therefore, an opinion is not necessary. Thus, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has retained the services of an accredited representative. He was afforded a personal hearing in March 2012. Accordingly, the Board will proceed to a decision as to the issues on appeal. Service connection for an acquired psychiatric disorder Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including psychoses, when such are manifested to a compensable degree within the initial post-service year. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact or chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). According to VA regulations, entitlement to service connection for PTSD requires that three elements be present: (1) medical evidence diagnosing PTSD; (2) combat status or credible supporting evidence that the claimed in-service stressors actually occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in service stressors. See 38 C.F.R. § 3.304(f) (2012); see also Cohen v. Brown, 10 Vet. App. 128 (1997). With regard to the second PTSD criterion, evidence of in-service stressors, the evidence necessary to establish that the claimed stressor actually occurred varies depending on whether it can be determined that the veteran "engaged in combat with the enemy." 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary. Service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Action Ribbon, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2012). Effective July 13, 2010, VA has amended its adjudication regulations governing service connection for PTSD with respect to the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board before July 13, 2010 but have not been decided by the Board as of July 13, 2010. Because the Veteran's PTSD claim was appealed to the Board before July 13, 2010 and is being decided thereafter, the Board observes that the updated version of the law is applicable in this case. Where a PTSD claim is based on an in-service personal assault, credible supporting evidence that the claimed stressor actually occurred is still required. Significantly however, evidence from sources other than the Veteran's service records may corroborate the account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5); see also Patton v. West, 12 Vet. App. 272 (1999). VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 38 C.F.R. § 3.304(f)(5). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In essence, the Veteran contends that he currently has an acquired psychiatric disorder, to include PTSD, as a result of being attacked by a Russian missile during service aboard the USS Razorback, and as a result of an in-service personal assault also occurred during service aboard the USS Razorback. It is undisputed that the Veteran has been diagnosed with a mood disorder and anxiety disorder with paranoia traits. See a VA treatment record dated April 2012. Hickson element (1) is therefore satisfied. The Board notes that the competent and probative evidence of record does not document a diagnosis of PTSD during the course of the appeal, which dates to June 2007 when the Veteran filed his service connection claim. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). To be present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). However, the Board recognizes the Court's decision in Romanowsky v. Shinseki, No. 11-3272 (U.S. Vet. App. July 10, 2013) which held that a claimant satisfies the current disability threshold when a disability exists at the time his or her claim was filed, even if the disability resolves prior to VA's adjudication of the claim. In this case, although a diagnosis of PTSD has not been documented during the course of the appeal, the Board observes that a September 2005 psychological diagnosis evaluation in connection with the Veteran's claim for SSA benefits documents a diagnosis of PTSD. Furthermore, a SSA treatment record dated February 2006 also notes the Veteran's treatment for PTSD. The evidence of record is unclear as to whether the Veteran's PTSD existed at the time he filed service connection for an acquired psychiatric disorder in June 2007. However, even if the Board accepts that the competent and probative evidence supports a current diagnosis of PTSD, as will be discussed below, the Veteran's PTSD claim fails for lack of a verifiable in-service stressor. Moving next to the Veteran's claimed in-service injuries, the Veteran has essentially described two different stressor experiences which he believes caused him to develop his current mental health problems. Specifically, he has stated that during service aboard the USS Razorback in May or June 1967, the submarine was struck by a Russian missile while the submarine was near the North Korean Peninsula and the Sea of Japan. See the March 2012 Board hearing transcript, page 4. In support of his claim, the Veteran submitted statements from B.D. and D.A. verifying the attack on the USS Razorback. He has also reported that he was assaulted by a crew member aboard the USS Razorback. See, e.g., a statement from the Veteran dated September 2007. The Veteran is certainly competent to attest to his own observable symptoms and in-service experiences. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence, however, differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Court of Appeals for Veterans Claims has made clear that the Board cannot determine that competent lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Veteran has competently described witnessing a combat-related stressor, specifically stating that the submarine that he served on was struck by a Russian missile as well as being assaulted by a crew member. Crucially, however, as will be discussed below, the Veteran's service records contain information that specifically contradicts his current assertions that he underwent these incidents. Concerning the Veteran's stressor that he underwent a missile attack during service aboard the USS Razorback, the Board initially notes that there is no objective evidence to show combat participation by the Veteran. The Veteran's DD Form 214, his service personnel records, and his statement of duty assignments which have been associated with his VA claims folder are pertinently negative for any indication that he served in combat. His DD Form 214 indicates that his military occupational specialty (MOS) was an electronic mechanic. Additionally, in January 2013, the AMC submitted a request to the U.S. Joint Service Records Research Center (JSRRC) in order to verify the Veteran's reported stressor pertaining to being struck by a Russian missile during service aboard the USS Razorback. In a report dated February 2013, the JSRRC provided a negative response, specifically stating that May-June 1967 command history and deck logs for the USS Razorback were reviewed, and there was no indication that the USS Razorback was struck by a Russian missile or torpedo. The Board reiterates that the Veteran and his representative have been provided notice of the requirements necessary to substantiate a claim of service connection for PTSD, specifically evidence of a credible in-service stressor. As such, additional development of the Veteran's claimed stressor would be useless. Pertinently, the Veteran's service treatment records and personnel records reveal no evidence of the Veteran's claimed stressor. Indeed, there is nothing to indicate that there exists anywhere any objective evidence that this incident in fact took place. In this connection, the Board cannot help but notice and comment upon what appear to be gross inconsistencies in the Veteran's presentation throughout the course of the appeal. The earliest documentation of the Veteran's in-service stressor is dated June 2007, when he filed his claim for VA benefits. Notably, there are of record multiple mental health evaluations dated prior to the filing of the Veteran's service connection claim. Although he discussed "combat experience" in Vietnam during a September 2005 SSA mental health evaluation, at no time during this evaluation or any other mental health evaluation did he specifically report a stressor pertaining to being struck by a missile during service aboard the USS Razorback. The Board adds that the Veteran's service personnel records do not document service in Vietnam. Thus, for a period of over 35 years after service, the Veteran never mentioned that his claimed PTSD is related to being struck by a missile during service aboard the USS Razorback. Based on these inconsistent statements, the Board discounts the credibility of the Veteran's current statements with respect to the alleged in-service stressor. The statements were made over 35 years after his separation from service. Not only may the Veteran's memory be dimmed with time, but self interest may play a role in the more recent statements. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]. In short, there is no objective evidence, to include the statements proffered by the Veteran, B.D., and D.A., which serves to verify the claimed stressor. The Board adds that, as discussed in detail above, if a stressor claimed by a veteran is related to the veteran's fear of hostile military activity, a VA psychologist confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. In this case, however, because the evidence of record supports a finding that the Veteran had no combat service, nor has he ever served in a location involving "fear of hostile military or terrorist activity," the liberalizing criteria contained in the new § 3.304(f)(3), and the combat presumptions outlined in 38 C.F.R. § 3.304(f)(2) are not applicable in this case. The Veteran's lay assertions that he received a missile attack during service, in and of itself, does not establish the occurrence of an in-service stressor. Moreover, the Board finds that the Veteran's current contention that he was struck by a Russian missile during service aboard the USS Razorback to be not credible. As noted above, the Veteran has also claimed that his current acquired psychiatric disorder, to include PTSD, is due to an in-service assault by a crew member while aboard the USS Razorback. The Board notes that the Veteran has submitted no evidence other than his own lay assertions to corroborate his claimed in-service personal assault stressor. The Veteran was advised in the above-referenced January 2013 VCAA letter that evidence from sources other than his own service records, or evidence of behavior changes may constitute credible supporting evidence of the stressor. The letter provided specific examples of such evidence, and the Veteran was afforded the opportunity to furnish this type of evidence to VA, or advise VA of potential sources of such evidence. 38 C.F.R. § 3.304(f)(5). Indeed, the Veteran's personnel records verify service aboard the USS Razorback. However, there is no indication that the Veteran exhibited any immediate behavioral change following this period of service, nor was there any report in his personnel records of a personal assault. In this regard, the Board notes that in February 2013, the AMC sent a letter to the Naval Criminal Investigative (NCIS) to verify the Veteran's alleged personal assault. In a response dated March 2013, the NCIS provided a negative response. Specifically, the NCIS reported that they are unable to provide any records relating to the request. Furthermore, the NCIS conducted a thorough search of all investigative files associated with the Veteran, and there were no documents holding a specific investigation referencing to the Veteran as a victim, subject or co-subject. It was noted that files of this nature from the timeframe in question would be destroyed and no longer retained. In any event, the Board notes that the Veteran specifically denied experiencing problems such as depression, anxiety and nervousness upon separation from service in July 1967, and was given a "normal" psychiatric clinical evaluation. He also denied any psychiatric symptomatology on a service report of medical history dated July 1969. Indeed, there is no documentation of an in-service personal assault until June 2007, when he filed his claim for VA benefits. Notably, during multiple mental health evaluations dated prior to the filing of his service connection claim, the Veteran did not report any history of physical abuse or assault during military service. While the Veteran is competent to attest to his in-service experiences and observable symptoms, in light of the evidence discussed immediately above, to include his own statements during mental health evaluations indicating he did not experience any physical trauma during service, and his more recent statements to the contrary to VA in support of his claim for monetary benefits, the Board finds the Veteran's assertions that he was assaulted by a crew member during service aboard the USS Razorback to be not credible. The Veteran has not submitted any corroborating evidence to include statements from family members, roommates, fellow service members, or clergy, or evidence documenting this incident or demonstrating an immediate change in behavior during service. The Board accordingly finds that the Veteran's claimed in-service stressors are not verified. Element (2) of 38 C.F.R. § 3.304(f) is unsatisfied, and the Veteran's claim for PTSD fails on this basis. With respect to the Veteran's service-connection claim for any other psychiatric disorder, as discussed above and contrary to the Veteran's current contentions, the Veteran did not complain of, or receive treatment for any mental health symptomatology during his period of active duty service or for years thereafter. Indeed, the Veteran was noted to have a "normal" psychiatric evaluation upon separation in July 1967. It was not until 2007 when he first alleged he experienced in-service assault and attack by a missile. For the reasons discussed in detail above, the Board finds that the Veteran's accounts of his in-service injuries to be not credible. As such, element (2), in-service disease or injury, is not satisfied, and the Veteran's service-connection claim for any acquired psychiatric disorder fails on this basis as well. For the sake of completeness, the Board will discuss element (3), nexus. See Luallen v. Brown, 8 Vet. App. 92, 95-6 (1995), citing Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) [the Board has the fundamental authority to decide a claim in the alternative]. There is no competent evidence of record that establishes a causal relationship between the Veteran's currently diagnosed acquired psychiatric disorder and his military service. In the absence of in-service disease or injury, it would seem that such nexus opinion would be impossible. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board reiterates that the Veteran has submitted statements from D.A. and B.D. dated October and November 2009, respectively, indicating that the Veteran has an acquired psychiatric disorder which is related to his military service. The Board notes that the Veteran, B.D., and D.A., while entirely competent to report the Veteran's symptoms both current and past (including anxiety), have presented no probative clinical evidence of a nexus between the Veteran's acquired psychiatric disorder and his military service. The Board finds that the Veteran, B.D., and D.A. as lay persons are not competent to associate any of the Veteran's claimed symptoms to military service. That is, the Veteran, B.D., and D.A. are not competent to opine on matters such as the etiology of the Veteran's current acquired psychiatric disorder. Such opinion requires specific medical training in the field of psychology and is beyond the competency of the Veteran, B.D., D.A., or any other lay person. In the absence of evidence indicating that the Veteran, B.D., or D.A. have the medical training to render medical opinions on complex medical conditions, the Board must find that their contentions with regard to a nexus between the Veteran's acquired psychiatric disorder and his military service to be of no probative value. See also 38 C.F.R. § 3.159(a)(1) (2012) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the statements offered by the Veteran, B.D., and D.A. in support of the Veteran's own claim is not competent evidence of a nexus. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. The Board notes that the Veteran appears to be contending that he has had an acquired psychiatric disorder continually since service. However, the first postservice evidence of complaint of, or treatment for this disorder is dated July 2005. See a private treatment record from R.B., M.D., dated July 2005. This was more than 30 years after the Veteran left service in July 1967. Moreover, the Board has found that the Veteran's reported in-service incidents pertaining to being struck by a missile and being assaulted by a crew member aboard the USS Razorback to not be credible. While the Veteran is competent to report symptoms such as anxiety and paranoia over the years since service, the Board notes that an acquired psychiatric disorder was not diagnosed at the time of his service discharge. The Board finds that his current statements regarding a continuity of psychiatric symptomatology are not credible. His July 1967 separation examination from service as well as the contemporary medical evidence of record contradict any current assertion that his current acquired psychiatric disorder was manifested during service. There is no competent medical evidence that the Veteran complained of or was treated for an acquired psychiatric disorder for many years after his separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) [affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition]. The Board accordingly places no probative value on the assertions of the Veteran that there has been a continuity of symptomatology dating to service. Therefore, continuity of symptomatology after service is not demonstrated. Accordingly, element (3) is not met, and the Veteran's claim also fails on this basis. The Board notes that the record does not reflect medical evidence showing any manifestations of disease of an acquired psychiatric disorder including symptoms associated with psychoses, during the one-year presumptive period after the Veteran's separation from service. On the contrary, as discussed above, the record does not reflect any complaints or findings of an acquired psychiatric disorder until July 2005 (more than 35 years after the Veteran's separation from active service). Service connection is therefore not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309(a). In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The benefit sought on appeal is accordingly denied. TDIU Pertinent legal criteria It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16 (2012). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15 (2012). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." See 38 C.F.R. § 4.16(a) (2012). The Court noted the following standard announced by the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. See Moore, 1 Vet. App. at 359. A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). A total disability rating for compensation may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a) (2012). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular- renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether a Veteran currently is unemployable. 38 C.F.R. § 4.16(a). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321 (2012). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). Analysis The Veteran is seeking entitlement to TDIU. As was discussed in the law and regulations section above, TDIU may be awarded on a schedular or extraschedular basis. For the reasons set out immediately below, the Board has determined that the Veteran has not met the criteria for TDIU on either a schedular or an extraschedular basis. Schedular basis The Veteran's current service-connected disabilities are as follows: tinnitus, evaluated as 10 percent disabling; and a bilateral hearing loss disability, evaluated as noncompensable (zero percent disabling). As these disabilities are of a common etiology, specifically in-service acoustic trauma, they will be treated as a single disability. He therefore has a disability rating of 10 percent. 38 C.F.R. § 4.25 (2012). Because the Veteran's disability rating is less than 60 percent and he does not have multiple disabilities with one rated at least 40 percent disabling, he does not meet the criteria for consideration of TDIU on a schedular basis. See 38 C.F.R. § 4.16(a) (2012). Extraschedular basis In this case, the RO has considered and rejected referral of the Veteran's TDIU claim to appropriate authority for consideration on an extraschedular basis under 38 C.F.R. § 4.16(b). Ordinarily, the VA Schedule for Rating Disabilities will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards." See 38 C.F.R. § 3.321(b)(1) (2012). For a Veteran to prevail on a claim for TDIU on an extraschedular basis, the record must reflect some factor which takes the case outside of the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating itself is not recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, and not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is sixty-six years old. He worked as an engineer until August 2006, at which point he resigned. He has been unemployed since that time. The Veteran currently receives SSA disability benefits for his acquired psychiatric disorder. See the March 2012 Board hearing transcript, page 3. As has been discussed above, in evaluating the claim for TDIU, the question before the Board is whether the service-connected disabilities alone render the Veteran unable to follow substantially gainful employment. In this case, there is no competent and probative evidence to the effect that the Veteran's service-connected bilateral hearing loss disability and tinnitus, alone or in concert, render him unable to obtain substantial gainful employment. With respect to marked interference with employment due to the service-connected bilateral hearing loss and tinnitus, the Veteran was afforded a VA audiological examination in July 2008. At that time, the Veteran reported that he experienced difficulty understanding conversation as well as hearing the television and telephone. An audiological examination was subsequently administered. Pertinently, the VA examiner did not indicate that the Veteran's bilateral hearing loss disability and tinnitus render the Veteran unable to obtain substantial gainful employment. Indeed, the Board notes that the Veteran has not asserted that he is unable to obtain substantial gainful employment due to his bilateral hearing loss disability and tinnitus. On the contrary, the Veteran has stated his unemployability is due to his non service-connected acquired psychiatric disorder, headaches, and diabetes. As noted above, the Veteran is currently in receipt of SSA disability benefits. However, a review of the decision shows that it considered multiple disabilities, including the Veteran's non service-connected acquired psychiatric disorder. In this decision, the Board is only concerned with the impact of the Veteran's service-connected bilateral hearing loss disability and tinnitus. Moreover, the criteria utilized by VA and the SSA in determining entitlement to disability benefits are not the same, and a determination by SSA is not binding upon VA. See, e.g., Collier v. Derwinski, 1 Vet. App. 413, 417 (1991); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); Damrel v. Brown, 6 Vet. App. 242, 246 (1994); Odiorne v. Principi, 3 Vet. App. 456, 461 (1992). The law requires VA to make an independent analysis and determination. As noted above, VA is not able to consider all the disabilities from which the Veteran suffers in determining unemployability. As such, the grant of SSA benefits is not sufficient to warrant referral for an extraschedular evaluation. The Board notes that the Veteran has had ample opportunity to submit additional evidence to bolster his contentions. Such supporting evidence has been requested by the RO, for example in the November 2009 statement of the case. It has not been forthcoming and does not appear to exist. See 38 U.S.C.A. § 5107 (West 2002) [it is the claimant's responsibility to support a claim for VA benefits]. The Board observes statements from the Veteran with respect to the severity of his disabilities and its impact on employability. However, the Board finds that these statements are outweighed by the objective medical evidence of record, which as discussed above indicates that the Veteran's service-connected bilateral hearing loss disability and tinnitus do not preclude him from obtaining substantial gainful employment. Moreover, there is no competent and probative evidence of record that the Veteran's service-connected disabilities alone significantly impaired his ability to work as an engineer in 2006. The Board does not in any way wish to downplay the significance of the Veteran's service-connected disabilities. The Board believes, however, that the symptomatology associated with the Veteran's service-connected disabilities are appropriately compensated via the currently assigned schedular ratings. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. Thus, while in no way diminishing the impact that the service-connected disabilities have on the Veteran's industrial capacity, this is already taken into consideration via the disability ratings assigned. In summary, the record on appeal does not provide support for a conclusion that the Veteran's service-connected bilateral hearing loss disability and tinnitus present an exceptional or unusual disability picture, such that referral for extraschedular consideration is warranted. For the reasons and bases expressed above, the Board concludes that a preponderance of the evidence is against the Veteran's claim. Referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is not warranted. The benefit sought on appeal, TDIU, is accordingly denied. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. Entitlement to TDIU is denied. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs