Citation Nr: 1324825 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 09-47 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to a disability rating greater than 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from January 1968 to November 1971, including in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied, in pertinent part, the Veteran's claim for a disability rating greater than 30 percent for PTSD and a claim of service connection for a back disability (which was characterized as a back condition with degenerative disc disease with spondylolisthesis). Having reviewed the evidence of record, the Board finds that the Veteran's service connection claim for a back disability is characterized more appropriately as stated on the title page of this decision. The Board observes that the Veteran testified at two different Board hearings before the undersigned Acting Veterans Law Judge (AVLJ) and another AVLJ. The first Board hearing was held in September 2008 and the second hearing was held in January 2011. Both of these hearings were held at the Waco RO and transcripts of both hearings are of record. The Veteran's increased rating claim for PTSD and his service connection claim for a back disability were addressed only at the January 2011 Board hearing held before the undersigned AVLJ. Both of the Veteran's Board hearings addressed the issue of entitlement to a total disability rating based on individual unemployability (TDIU) ("TDIU claim"). Following the January 2011 Board hearing, because the TDIU claim was in common to both of the Veteran's Board hearings, he was given the opportunity to request another Board hearing before a third VLJ prior to a decision being issued by a panel of not less than 3 members on the common issue to both of his Board hearings (in this case, the TDIU claim). See 38 U.S.C.A. § 7102(a), 7107(c) (West 2002 & Supp. 2012); 38 C.F.R. § 20.707 (2012); see also Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Veteran declined a third Board hearing in August 2011 correspondence. The Veteran's TDIU claim subsequently was remanded by the Board to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development in May 2012 in a panel decision signed by three VLJs, to include the undersigned AVLJ. Id. In a separate remand issued in May 2012, the Board also remanded the Veteran's service connection claim for a back disability and his increased rating claim for PTSD to the RO/AMC for additional development. In a February 2013 rating decision, the RO granted the Veteran's TDIU claim effective August 25, 2008, and assigned a higher 70 percent rating effective August 25, 2008, for his service-connected PTSD. The RO's action in granting TDIU constitutes a complete grant of the benefit sought on appeal with respect to this claim. Accordingly an issue relating to a TDIU is no longer in appellate status. See Grantham v. Brown, 114 F .3d 1156 (1997). In light of the RO's actions in the February 2013 rating decision, the Veteran's increased rating claim for PTSD also has been recharacterized as stated on the title page of this decision. The issue of entitlement to service connection for a back disability is addressed in the REMAND portion of the decision below and is REMANDED again to the RO/AMC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The record evidence shows that the Veteran's service-connected PTSD is manifested by, at worst, a difficult relationship with his wife, a close relationship with his grandson who lives with him and his wife, difficulty sleeping, depression, full orientation, and tearfulness; he has retired from his former occupation as a truck driver due to physical limitations and impairments caused by hypertension and diabetes mellitus. 2. The record evidence does not indicate that the Veteran experiences total occupational and social impairment in most areas due to his service-connected PTSD. CONCLUSION OF LAW The criteria for a disability rating greater than 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In a letter issued in October 2008, VA notified the Veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter informed the Veteran to submit medical evidence showing that his service-connected PTSD had worsened. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Court previously held that to satisfy the first Quartuccio element for an increased compensation claim, section 5103(a) compliant notice must meet a four-part test laid out in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The United States Court of Appeals for the Federal Circuit (Federal Circuit) overruled Vazquez-Flores in part, striking the claimant-tailored and "daily life" notice elements. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Court also issued an opinion incorporating those surviving portions of the first Vazquez-Flores decision, namely that VA must notify the claimant that 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability, 2) a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment, and 3) provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation, and must also notify the claimant that to substantiate such a claim the claimant should provide or ask the Secretary to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 107 (2010) (Vazquez-Flores III). For the following reasons, the Board finds that the elements of the Vazquez-Flores test that remain under Vazquez-Flores III either have been met in this case or that any error in not providing such notice is not prejudicial to the Veteran. The first and third elements were met by the October 2008 notice letter. This letter informed the Veteran that he needed to provide information showing his service-connected PTSD had worsened. He was informed that such evidence could be a statement from his doctor or lay statements describing what individuals had observed about his disability. He was told that he needed to provide VA information as to where he had received medical treatment, or that he could send VA any pertinent treatment records. Examples of evidence needed to support the claim were provided, including laboratory tests, examinations, and statements from other individuals who could describe from their knowledge and personal observations the manner in which his disability had worsened. He also was informed of what evidence VA would obtain on his behalf and what he needed to do to help VA process his increased rating claim for PTSD. The Veteran also has submitted personal statements and lay statements from others with respect to his service-connected PTSD. As the Board finds the Veteran had actual knowledge of the requirement to show worsening of his PTSD and the variety of the medical and lay evidence which could support his claim, any failure to provide him with adequate notice as to the first and third Vazquez-Flores elements is not prejudicial. As to the second element of Vazquez-Flores notice, the Board acknowledges that the Veteran was not provided notice that a disability rating would be determined by application of the ratings schedule and relevant diagnostic codes based on the extent and duration of the signs and symptoms of his disability and their impact on his employment. See Vazquez-Flores III, 24 Vet. App. at 107. The Veteran received a statement of the case in November 2009 and supplemental statements of the case in September 2010 and in November 2012 addressing his increased rating claim for PTSD. Specific VCAA notice to the Veteran of the ratings schedule to be applied to the symptomatology of his disability is unnecessary in light of repeated correspondence sent to the Veteran by the RO/AMC describing the Rating Schedule and applying the relevant regulations to this claim. The Board finds that the Veteran was on constructive notice of the existence and function of the Ratings Schedule. The Board further finds that any error in the third element of Vazquez-Flores notice is not prejudicial. In summary, the Board concludes that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. As will be explained below in greater detail, the evidence does not support granting an increased rating for PTSD. Because the Veteran was fully informed of the evidence needed to substantiate this claim, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the timing of the notice, the Board points out that the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the October 2008 letter was issued to the Veteran and his service representative prior to the January 2009 rating decision which denied the benefits sought on appeal; thus, this notice was timely. Because the Veteran's increased rating claim for PTSD is being denied in this decision, any question as to the appropriate disability rating or effective date is moot and there can be no failure to notify the Veteran. See Dingess, 19 Vet. App. at 473. And any defect in the timing or content of the notice provided to the Veteran and his service representative has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran's Virtual VA claims file has been reviewed. The Veteran also does not contend, and the evidence does not show, that he is in receipt of Social Security Administration (SSA) disability benefits such that a remand to obtain his SSA records is required. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above 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, during the hearing, the Acting VLJ (AVLJ) noted the basis of the prior determination and noted the element of the claims that was lacking to substantiate the claim for benefits. The AVLJ specifically noted the issues as including entitlement to an increased rating for PTSD. The Veteran was assisted at the hearing by an accredited representative from Texas Veterans Commission. The representative and the AVLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of his claims. In addition, the AVLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. The representative specifically asked the Veteran about continuity of his PTSD symptomatology since service. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claim for benefits. The Veteran's representative and the AVLJ asked questions to draw out the evidence which demonstrated worsening of his service-connected PTSD, the only element of the claim in question. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Veteran has been provided with VA examinations which address the current severity of his service-connected PTSD. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the pertinent medical history was noted by the examiners, these examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the examinations of record are adequate for rating purposes and additional examination is not necessary regarding the claim adjudicated in this decision. See also 38 C.F.R. §§ 3.326, 3.327, 4.2. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Increased Rating for PTSD The Veteran contends that his service-connected PTSD is more disabling than currently evaluated. He specifically contends that his PTSD is totally disabling, entitling him to a 100 percent schedular rating. Law and Regulations In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The Veteran's service-connected PTSD currently is evaluated as 70 percent disabling effective August 25, 2008, under 38 C.F.R. § 4.130, DC 9411. See 38 C.F.R. § 4.130, DC 9411 (2012). As relevant to this claim, a 70 percent rating is assigned under DC 9411 for PTSD manifested by 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 work-like setting), or an inability to establish and maintain effective relationships. A 100 percent rating is assigned under DC 9411 for PTSD manifested by total occupational and social impairment due to such symptoms as gross impairment in thought process 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, and memory loss for names of close relatives, own occupation, or own name. Id. The Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). As relevant to this claim, a GAF score of 41 to 50 is defined as denoting serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 51 to 60 is defined as indicating moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). See Carpenter v. Brown, 8 Vet. App. 240, 242-244 (1995). Factual Background The recent evidence shows that, on VA outpatient treatment in October 2007, no relevant complaints were noted. The Veteran reported that he got along well with his wife "but still has on-going issues with his stepson (wife's grown son) who lives in their property." Mental status examination of the Veteran showed he was "calm and in good contact," coherent and fluent speech, goal-directed thinking, full orientation, and no suicidal or homicidal ideation. The diagnoses included PTSD. On VA examination in December 2007, the Veteran's complaints included mild to moderate PTSD symptomatology manifested by "short-term memory deficits, excessive worry, intermittent nightmares many of which he is unable to recall, excessive motoric activity during sleep, hypervigilance, avoidance, reminders of combat, and feelings of disillusionment." The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. The Veteran "had functioned fairly well vocationally for several years until a few years ago when he resigned his job because of physical disability." He had "a fairly good relationship with [his] wife with occasional arguments that appear to be within normal expectation of a marital relationship. He has [a] good relationship with 5 stepchildren and 12 grandchildren." He has 1 friend "whom he visits regularly." He spent time with his wife, performed yard work, and worked on the fence on his property for activities and leisure pursuits. A remote history of assaultive behavior was reported. There was no history of suicide attempts. He had worked as a truck driver for 35 years but quit working "because of physical limitation[s] and [an] inability to pass the required physical examination." His social and interpersonal relationships were poor although he enjoyed his limited recreational and leisure activities. Mental status examination of the Veteran in December 2007 showed he was somewhat cooperative with good eye contact and frequent tearing from the right eye, normal speech, reported hypervigilance and paranoid ideations "but no frank delusions," intermittent and unformed auditory hallucinations "that are amenable to safe redirection," no suicidal or homicidal ideation or plan, intact ability to maintain minimal personal hygiene and activities of daily living, full orientation, reported memory impairment that was not supported by objective testing, no obsessive or ritualistic behavior, no impaired impulse control, and reported intermittent insomnia "that result[s] in mild fatigue" but otherwise normal sleep. "The Veteran reports intermittent awakening at night that is suggestive of panic attacks, but he is unable to clearly described classic symptoms of panic attacks." The Veteran's GAF score was 55, indicating moderate symptoms or moderate impairment in social, occupational, or school functioning. The VA examiner stated that there had been "no significant change" in the Veteran's psychosocial functional status and quality of life since his most recent examination. He also stated that the Veteran's continued persistent tearing in the right eye was "owing to basal cell carcinoma." He stated further that, although the Veteran's PTSD symptoms "require continuous medication" they did not result in his unemployability which occurred after being employed for 39 years and having to resign due to physical limitations and not psychiatric symptoms which had been present "for over 40 years." The Veteran's GAF score was 55, indicating moderate symptoms or moderate difficulty in social, occupational, or school functioning. The diagnoses included chronic PTSD. On VA outpatient treatment in August 2008, the Veteran's complaints included increasing tiredness and difficulty in managing "his anger problems." The Veteran's PTSD symptoms included "intrusive thoughts, sleep disturbances and nightmares, irritability, emotional numbing, anhedonia, trust issues, suicidal ideation, depressed mood, and hopelessness." Mental status examination of the Veteran showed full orientation, no hallucinations and "no frankly delusional thinking," no suicidal ideation or plan although he reported "feeling more hopeless and unable to manage," and no homicidal ideation. "The Veteran has coped with his PTSD for many years." The Veteran reported that he felt "unable to cope with relationships and with his job or even with the daily tasks of living." The Veteran's GAF score was 45, indicating serious symptoms or any serious impairment in social, occupational, or school functioning. The diagnoses included PTSD. A review of the Veteran's Virtual VA paperless claims file shows that he continued to receive outpatient treatment for his service-connected PTSD in 2008. On VA examination in October 2008, the Veteran's complaints included "episodes of intrusive thoughts of the Vietnam War and flashbacks of those feelings. He had an episode of anxiety, depression, and emotional irritability. He has problems sleeping at night with nightmares of what happened in Vietnam." The VA examiner stated that "[o]ld medical records were available and reviewed." The Veteran was married to his third wife and lived with her. Following active service, including in Vietnam, the Veteran had worked as a truck driver until he became "physically ill" in 2002 with diabetes and hypertension and "was unable to pass a physical exam to work as a truck driver and therefore he retired in 2002." After his retirement in 2002, the Veteran experienced "episodes of emotional irritability and flashbacks of the Vietnam War and he had problems sleeping at night with nightmares of the Vietnam War." The Veteran reported that these symptoms "have occurred off and on probably after he left Vietnam in 1969." Mental status examination of the Veteran showed he was "able to take care of himself physically," coherent and relevant speech, an ability "to understand all questions and responds to all questions in a proper manner," no delusions, hallucinations, suicidal or homicidal ideation, full orientation, average intellectual functioning, an ability "to express his feelings," and a moderately depressed mood "particularly when he was talking about the Vietnam War experiences." The Veteran's GAF score was 45. The diagnoses included chronic PTSD. On VA outpatient treatment in April 2010, the Veteran's complaints included "intrusive thoughts, sleep disturbances and nightmares, irritability, emotional numbing, motivational difficulties, impaired judgment, depressed mood, and hopelessness." Mental status examination of the Veteran showed full orientation, no "frankly delusional thinking," and no recent or current suicidal ideation. The VA examiner stated that the Veteran's "PTSD symptoms are minor." The Veteran's GAF score was unchanged. The diagnoses included PTSD. In December 2010, the Veteran complained "that he is uncomfortable leaving his property and uncomfortable with other people. The Veteran is sleeping very little and finds it difficult to concentrate on most tasks." The Veteran also had been unemployed "for some time" and "reported severe economic difficulties that are impacting his marriage." He and his wife lived "in a shed that they have, over the past year, converted into a home." He reported that, prior to February 2010, he was "drinking daily to excess. For a few months he drank moderately. In May of 2010 he had a full blown relapse. The Veteran reported that in November 2010 he did not drink." Mental status examination of the Veteran showed full orientation, no hallucinations or "frankly delusional thinking," no recent or current suicidal ideation or intent, and no homicidal ideation. The Veteran's GAF score was unchanged. The diagnoses included PTSD. A review of the Veteran's Virtual VA paperless claims file shows that he continued to receive outpatient treatment for his service-connected PTSD in 2010 and in 2011. The Veteran testified at his January 2011 Board hearing before the undersigned AVLJ that he was "depressed all the time" as a result of his service-connected PTSD. See Board hearing dated January 11, 2011, at pp. 10. On VA outpatient treatment in June 2012, the Veteran's complaints included irritability, sleep disturbance, motivational difficulties, impaired judgment, isolation, and anxiety and depressed mood. "The Veteran has reported improvements in his mood. He has not reported significant anxiety in some time." Mental status examination of the Veteran showed full orientation, no hallucinations or "frankly delusional thinking," no recent or current suicidal ideation, and no homicidal ideation. "The Veteran initially reported severe economic difficulties that were impacting his marriage. His wife and he converted a shed into a home and now report that they are happy with their property. The Veteran has reported more social activity and improved mood and marital functioning." It also was noted that the Veteran has a sense of humor and enjoys creating things out of wood, cooking and fishing. The Veteran is helping raise a grandson and this has brought him joy." The Veteran's GAF score was 60, indicating moderate symptoms. The diagnoses included PTSD in partial remission. On VA examination in July 2012, the Veteran's complaints included difficulty sleeping, depression, no socializing, and avoiding conversation with others. The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. He lived with "his third wife of 16 or more years and his two year old grandson." He had a difficult relationship with his wife because they were "frequently called upon to assist" his wife's adult children. His wife was in poor health. He had a very affectionate relationship with his grandson. He was in regular contact with his mother but had little to no contact with his sister. Although he had 1 friend he visited previously, this friendship ended "when the women in the respective relationships got into a disagreement." He was unable to enjoy dancing, which he had enjoyed, due to his "bad knees." He reported that "he does 'nothing for fun.'" The Veteran had been treated for alcohol abuse through VA since his October 2008 VA examination. "He sleeps about 3 to 5 hours [a night] and states 'that is all I need.'" He reported "difficulty shopping due to [a] need to avoid crowds and resulting panic attacks. Similarly, when driving, he is prone to panic attacks and has to pull over." Mental status examination of the Veteran in July 2012 showed good eye contact, clear "and easily interpretable" speech, initially logical and coherent thought processes that "quickly become tangential," no auditory or visual hallucinations, no delusions, full orientation, intact reality contact, attention and concentration within normal limits "but problems are reported by the Veteran," recent memory impairment but no other memory impairment, a depressed mood, and a "frequently tearful" affect. The Veteran drank 3-4 beers every day but did not drink to intoxication. The Veteran's GAF score was 55. The VA examiner stated that he could not differentiate between symptomatology and functional impairment attributable to the Veteran's service-connected PTSD versus his non-service-connected depressive disorder due to the overlapping symptoms common to both diagnoses. This examiner also stated that the Veteran's PTSD was manifested by, at worst, 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 diagnoses included chronic PTSD. Analysis The Board finds that the preponderance of the evidence is against assigning a disability rating greater than 70 percent for the Veteran's service-connected PTSD. The Veteran has contended that his service-connected PTSD is totally disabling, entitling him to a 100 percent schedular rating for this disability under 38 C.F.R. § 4.130, DC 9411. See 38 C.F.R. § 4.130, DC 9411 (2012). The competent evidence does not support his assertions concerning the current severity of his service-connected PTSD, however. It shows instead that the Veteran's service-connected PTSD is manifested by, at worst, a difficult relationship with his wife, a close relationship with his grandson who lives with him and his wife, difficulty sleeping, depression, full orientation, and tearfulness. The evidence also does not suggest that the Veteran experiences total occupational and social impairment in most areas due to his service-connected PTSD. The Veteran has retired from his former occupation as a truck driver due to physical limitations and impairments caused by non-service-connected hypertension and service-connected diabetes mellitus. The recent evidence shows that the Veteran's PTSD symptomatology is, at worst, moderately to seriously disabling but not totally disabling in terms of occupational and social impairment. The Veteran reported at several of the VA examinations conducted during the pendency of this appeal that, after working for 39 years as a truck driver following his service separation, he had resigned or retired from this occupation due to his physical limitations and an inability to meet the physical examination requirements necessary to continue working as a truck driver. He did not report, and the evidence does not show, that he was forced to quit working because his service-connected PTSD had resulted in total occupational impairment. The Board finds it significant that, as the December 2007 VA examiner noted, the Veteran's PTSD symptomatology had been present "for over 40 years," including throughout his 39-year career as a truck driver. See also Vazquez-Claudio v. Shinseki, No. 2012-7114 (Fed. Cir. Apr. 8, 2013) (holding that specific factual findings as to Veteran's impairment in most areas of occupational and social impairment are critical to determining the appropriate disability rating). The Veteran also has been married to his third wife throughout the pendency of this appeal. Although he has reported difficulty in his relationship with his wife, the December 2007 VA examiner found that this was "within normal expectation of a marital relationship." A VA clinician determined in April 2010 that the Veteran's PTSD was manifested by only "minor" symptoms. The June 2012 VA examiner determined that the Veteran's PTSD was in partial remission and his relationship with his wife had improved. The Veteran also "reported more social activity and improved mood" in June 2012. On VA examination in July 2012, the Veteran attributed his marital difficulties to disagreements over being called upon frequently to assist his wife's adult children. The Veteran stated in July 2012 that his one friendship had ended but it appears that this friendship ended for reasons other than due to a worsening of the Veteran's service-connected PTSD. He also stated in July 2012 that he had a very affectionate relationship with his grandson and was in regular contact with his mother although he had little to no contact with his sister. The Board acknowledges that the July 2012 VA examiner found that the Veteran's PTSD was manifested by, at worst, 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 (i.e., a 30 percent rating under DC 9411). See 38 C.F.R. § 4.130, DC 9411 (2012). The Board notes, however, that assignment of an evaluation under the Rating Schedule is the responsibility of the finder of fact and not the examiner. The adjudicator is charged with interpreting the competent and credible evidence of record as whole and reconciling it to reflect accurately the level of disability experienced by a Veteran. Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009); 38 C.F.R. § 4.2. While medical and lay opinions regarding the extent of functional impairment are evidence to be considered, the ultimate factual determination lies with the adjudicator. Just as an adjudicator may not substitute his or her own opinion for medical judgment, Colvin v. Derwinski, 1 Vet. App. 171 (1991), a medical opinion cannot subvert the responsibility of the fact finder. See Moore, 555 F.3d at 1372. Thus, the Board finds that the July 2012 VA examiner's statement that the symptomatology attributable to the Veteran's service-connected PTSD essentially merited a 30 percent rating under the Rating Schedule is less than probative on the issue of the current severity of this disability. The evidence of record does not demonstrate that the Veteran's service-connected PTSD is totally disabling or has resulted in total social and occupational impairment in most areas such that a disability rating greater than 70 percent for his service-connected PTSD is warranted under DC 9411. See 38 C.F.R. § 4.130, DC 9411 (2012). See also Vazquez-Claudio v. Shinseki, No. 2012-7114 (Fed. Cir. Apr. 8, 2013) (holding that specific factual findings as to Veteran's impairment in most areas of occupational and social impairment are critical to determining the appropriate disability rating). The Veteran also has not identified or submitted any competent evidence, to include a medical nexus, demonstrating his entitlement to a disability rating greater than 70 percent for PTSD. In summary, the Board finds that the criteria for a 70 percent rating for the Veteran's service-connected PTSD have not been met. The Board finally finds that consideration of additional staged ratings for the Veteran's service-connected PTSD is not warranted. The symptomatology attributable to the Veteran's service-connected PTSD essentially has been the same throughout the pendency of this appeal. (The Board notes parenthetically that it appears that the consistent nature of the Veteran's moderately severe PTSD symptomatology prompted the RO to assign a higher 70 percent rating effective August 25, 2008 (the date of his increased rating claim), in the February 2013 rating decision). Thus, the criteria for consideration of additional staged ratings for the Veteran's service-connected PTSD are not met. See Hart, 21 Vet. App. at 505. Extraschedular The Board must consider whether the Veteran is entitled to consideration for referral for the assignment of an extraschedular rating for his service-connected PTSD. 38 C.F.R. § 3.321; Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that schedular evaluation assigned for the Veteran's service-connected PTSD is not inadequate in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected PTSD. This is especially true because the 70 percent rating currently assigned for the Veteran's PTSD effective August 25, 2008, contemplates moderately severe disability. Moreover, the evidence does not demonstrate other related factors such as marked interference with employment and frequent hospitalization. As noted elsewhere, the Veteran has reported consistently on VA examinations conducted during the pendency of this appeal that he retired from his former occupation as a truck driver after 39 years due to physical limitations and his inability to pass a physical examination required to continue driving. The Veteran does not contend, and the evidence does not show, that he has been hospitalized frequently for treatment of his service-connected PTSD at any time during the pendency of this appeal. In light of the above, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a disability rating greater than 70 percent for PTSD is denied. REMAND The Veteran contends that he incurred a low back disability during active service. He specifically contends that he injured his low back during an in-service motorcycle accident in 1969 and has experienced low back pain continuously since that time. As noted in the Introduction, in a single-judge decision issued in May 2012, the Board remanded the Veteran's service connection claim for a low back disability to the RO/AMC for additional development. See Board remand dated May 9, 2012 (Docket No. 09-47 698). The Board directed the RO/AMC to schedule the Veteran for a VA examination to determine the nature and etiology of his low back disability. Id., at pp. 6-7. The Board specifically asked the VA examiner to provide an opinion concerning the contended causal relationship between a low back disability and active service which included a discussion of the Veteran's service treatment records noting multiple abrasions from a motorcycle accident in May 1969, post-service VA outpatient treatment records dated in June 2002 and in August 2002 which noted complaints of low back pain without a history of injury (in June 2002) and a history of heavy manual labor jobs and low back pain since a 1983 injury when he fell off of a tank (in August 2002), and complaints of low back pain noted in 2004 and 2006 VA outpatient treatment records. Id., at pp. 7. The Veteran reported for VA back (thoracolumbar spine) conditions Disability Benefits Questionnaire (DBQ) in July 2012. Unfortunately, following a review of this DBQ, the Board finds that the July 2012 VA examiner did not answer all of the questions asked of him in the May 2012 remand. A review of this DBQ shows that, following physical examination of the Veteran and a review of the claims file, the VA examiner checked a box indicating that the Veteran's low back disability was less likely that not incurred in or caused by an in-service injury, event, or illness. The rationale was as follows: The Veteran's service treatment records do not evidence back pain or injury. His discharge [physical examination] also does not indicate a back pain condition. Based on my clinical experience and judgment, his present back condition is not related to military service. The July 2012 VA examiner did not address the post-service VA outpatient treatment records dated in June 2002 and in August 2002 which noted complaints of low back pain without a history of injury (in June 2002) and a history of heavy manual labor jobs and low back pain since a 1983 injury when he fell off of a tank (in August 2002), and complaints of low back pain noted in 2004 and 2006 VA outpatient treatment records, although he referred to the Veteran's in-service motorcycle accident and post-service lumbar spine x-rays in 2002 and 2008 at the outset of this DBQ. All of this evidence was highlighted in the Board's May 2012 remand. Id. The rationale provided by the July 2012 VA examiner also is problematic because it suggests that the lack of contemporaneous service treatment records demonstrating in-service complaints of or treatment for back problems is persuasive support for his negative nexus opinion concerning the contended causal relationship between the Veteran's current low back disability and active service. The Court has held that the lack of in-service treatment records demonstrating a claimed disability is not a bar to granting service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Because the July 2012 VA examiner did not answer all of the questions asked in the Board's May 2012 remand, the Board finds that, on remand, the July 2012 VA back (thoracolumbar spine) conditions DBQ should be returned to this examiner for an addendum in which he provides an opinion on the contended causal relationship between the Veteran's active service and his current low back disability that includes a discussion of the evidence highlighted in the Board's prior remand. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the RO/AMC to re-certify this appeal to the Board in March 2013 without complying with the May 2012 remand instructions. Given this error, another remand is required. Accordingly, the case is REMANDED for the following action: 1. Contact the VA Central Texas Health Care System, Temple Division, and ask the VA examiner who conducted the Veteran's July 18, 2012, VA back (thoracolumbar spine) conditions Disability Benefits Questionnaire (DBQ) to provide an addendum to this report. The claims file and a copy of this remand must be provided to this examiner for review. In his addendum, this VA examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's currently diagnosed degenerative joint and disc disease of the lumbar spine is related to active service or any incident of service, to include an in-service motorcycle accident in 1969. In providing this opinion, this examiner must discuss the Veteran's service treatment records noting multiple abrasions from a motorcycle accident in May 1969, his post-service VA outpatient treatment records dated in June 2002 and in August 2002 which noted complaints of low back pain without a history of injury (in June 2002) and a history of heavy manual labor jobs and low back pain since a 1983 injury when he fell off of a tank (in August 2002), and his complaints of low back pain noted in 2004 and 2006 VA outpatient treatment records. A complete rationale must be provided for any opinions expressed. 2. If, and only if, the VA examiner who conducted the Veteran's July 18, 2012, VA back (thoracolumbar spine) conditions DBQ is not available, then schedule the Veteran for appropriate in-person VA examination to determine the nature and etiology of his low back disability. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The examiner should identify any low back disability currently experienced by the Veteran, if possible. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file, and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a low back disability, if diagnosed, is related to active service or any incident of service, to include a motorcycle accident in 1969. In providing this opinion, the examiner should discuss the Veteran's service treatment records noting multiple abrasions from a motorcycle accident in May 1969, his post-service VA outpatient treatment records dated in June 2002 and in August 2002 which noted complaints of low back pain without a history of injury (in June 2002) and a history of heavy manual labor jobs and low back pain since a 1983 injury when he fell off of a tank (in August 2002), and his complaints of low back pain noted in 2004 and 2006 VA outpatient treatment records. A complete rationale must be provided for any opinions expressed. 3. The Veteran should be given adequate notice of the requested examination, if scheduled, which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 4. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ KRISTI L. GUNN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs