Citation Nr: 1327455 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 09-44 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for residuals of a left rotator cuff injury. 2. Entitlement to an initial rating in excess of 10 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active service from December 1965 to September 1967. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of January 2009 by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO), regarding the issue of entitlement to an initial rating in excess of 10 percent for PTSD, and a July 2009 decision by the Manchester, New Hampshire, RO, on the issue of entitlement to service connection for a rotator cuff injury, left shoulder. In September 2011, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ). The transcript of the hearing has been reviewed and associated in the claims file. In November 2011, the Board remanded the issue of entitlement to service connection for a rotator cuff injury, left shoulder, and denied the issue of entitlement to an initial rating in excess of 10 percent for PTSD. In July 2012, a Joint Motion for Partial Remand (JMR) was filed with the United States Court of Appeals for Veterans Claims (Court). Later that month, the Court issued an order partially vacating the Board's November 2011 decision, and remanded the case to the Board for compliance with the JMR and readjudication consistent with its order. The Board is obligated by law to ensure that the RO/AMC complies with its directives; 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. See Stegall v. West, 11 Vet. App. 268 (1998). The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. The Board additionally notes that the Veteran's electronic Virtual VA file has been reviewed in conjunction with the adjudication of the claim currently on appeal. FINDINGS OF FACT 1. The Veteran did not exhibit residuals of a left rotator cuff injury in service or within one year after discharge from service, and residuals of a left rotator cuff injury is not otherwise shown to be associated with service or with an injury or disease of service origin. 2. Since service connection, the Veteran's PTSD is productive of social and occupational impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. CONCLUSIONS OF LAW 1. Residuals of a left rotator cuff injury was not incurred in or aggravated by active military service, and nor may arthritis be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for a disability rating in excess of 10 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans' Claims Assistance Act of 2000 VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law. Id. However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the Court take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2). Shinseki v. Sanders, 556 U.S. 396 (2009). In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice. Id. Regarding the Veteran's claim for increased initial disability evaluation, this claim arises from his disagreement with the initial evaluation following the grant of service connection. The Court has held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required for this claim. As for the claim of entitlement to service connection, a letter sent to the Veteran in October 2008 addressed all notice elements listed under 3.159(b)(1) and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The VA incorporated the Veteran's service treatment records into his electronic file. Also, the Veteran received a VA medical examination in December 2008 and December 2011, and the VA has incorporated these records into the claims file. The Veteran has been afforded a hearing in September 2011 before the undersigned VLJ in which he presented oral argument in support of his 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 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. During the hearing, the undersigned VLJ noted the issues on appeal and solicited information regarding the occurrence of injuries and onset and nature of his symptomatology as well as the functional impact the claimed disabilities have on his daily life and employment. The Veteran's representative and the VLJ asked questions directed at identifying whether the Veteran met the criteria for a grant of service connection and an increased disability rating. The VLJ sought to identify any pertinent evidence not currently associated with the claim. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Furthermore, 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 elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that no further action pursuant to Bryant is necessary. Additionally, the Board finds there has been substantial compliance with its August 2011 remand directives. The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand.) Pursuant to the November 2011 remand, the Veteran was afforded an additional VA examination for his claim of entitlement to service connection for residuals of a left rotator cuff injury. As previously stated, the July 2012 JMR contended that at the December 2008 VA PTSD examination the Veteran stated he was currently receiving psychiatric treatment with "Ms. S." and was in counseling with "A.B." These treatment records have not been obtained and associated with the claims file for consideration in the Veteran's appeal. Furthermore, the JMR stated the VA also failed to obtain the September 30, 2008, treatment record from the VA Medical Center in Manchester, New Hampshire, where the Veteran reportedly complained of symptoms related to his PTSD. As such, pursuant to the April 2013 remand, outstanding records dated September 30, 2008, from the VA Medical Center in Manchester, New Hampshire, have been obtained and associated with the claims file and/or the Virtual VA claims processing system. In addition, attempts were made to retrieve the Veteran's treatment records of "Ms. S." and "A.B." In an April 2013 letter sent to the Veteran, the AMC noted that it was unclear whether these records were from a VA or private facility and asked the Veteran to identify the names, addresses, and approximate dates of treatment for all health care providers who have treated him for his claimed conditions which were not already associated with the record. The the Veteran did not respond to the AMC with this additional information. The Board notes that a review of the medical evidence of record does not indicate that records of treatment from "Ms. S." and "A.B." are from a VA medical facility. If there is additional available evidence to help substantiate the Veteran's claim, the AMC cannot obtain these records without further assistance from the Veteran. VA is only required to seek pertinent records that are adequately identified and for which necessary releases are furnished. 38 U.S.C.A. § 5103A(b); see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street"); 38 C.F.R. §§ 3.159(c)(1)(i), (c)(2)(i) (requiring a claimant to cooperate fully with VA's efforts to obtain federal and non-federal records). As the Veteran did not submit additional information for treatment received from these health care providers and did not otherwise respond to the April 2013 letter, any further efforts to obtain treatment records from "Ms. S." and "A.B." would be futile. 38 C.F.R. § 3.159(c)(2). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remands. See Stegall, supra, (finding that a remand by the Board confers on an appellant the right to compliance with its remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2012). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected. II. Merits of the Claims Service Connection Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b) (2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Board notes that the Veteran has been diagnosed with degenerative joint disease of the left shoulder (i.e., arthritis), which is a chronic disease under 38 C.F.R. § 3.309(a) and is subject to the provisions governing service connection based upon continuity of symptomatology. In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), 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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Turning to the evidence of record, the Veteran testified at the September 2011 Board hearing that he injured his arm while stationed in Bearcat, Republic of Vietnam. He stated that while he was recharging batteries and carrying them back to the trailer where they were kept, he slipped and fell in the mud. He testified that his feet "went out [from] under [him], and [he] landed on [his] elbow and [his arm] went all the way up and hit the top of [his] head." The Veteran stated he was sent to the medic unit and was eventually evacuated to the medivac hospital for x-rays. He stated that he could not move his arm and it took about 10 days before he was able to move his arm above his head. He stated he did not have any problems holding things at that time but his left shoulder deteriorated over the years from the initial injury. The Veteran further testified that when he sustained his injury he was told that his shoulder "popped out of joint and it would take probably 10 days to 2 weeks to get it back in movement." Following the 10 days, he did not notice any functional limitation because the rotator cuff was still in the joint. He stated that a MRI was taken at the VA in 2009 and was told that "everything was deteriorating." The doctors recommended shoulder replacement surgery. Furthermore, the Veteran stated that between separation from service in 1967 to 1968, he did not notice any symptoms of the left shoulder such as the shoulder coming out of the joint, limited mobility, pain, or difficulty putting on his clothes that required the use of the shoulder. However, it was later on, approximately 10 or 15 years prior to his testimony before the undersigned VLJ, he began to notice symptoms. The Veteran's in-service treatment records contain no complaint, treatment, or diagnosis of any injury of the left shoulder. According to the Report of Medical History at separation, dated September 1967, the Veteran stated he was in excellent health and answered negatively to whether he ever had, or currently had, "painful or 'trick' shoulder or elbow," "bone, joint, or other deformity," or "arthritis or rheumatism." The Veteran also answered negatively to whether he ever had illness or injury other than those already noted, or whether he consulted or been treated by clinics or health care providers within the past five years. Additionally, the Veteran's Report of Medical Examination at separation did not find any abnormalities in the upper extremities. According to the Veteran's post-service treatment records, the first instance of treatment for left shoulder pain was in February 2009. An April 2009 x-ray of the left shoulder revealed prominent spurs and osteaophytes and an MRI showed degenerated labral tear, RC sufferance, and prominent diffuse GH OA. He stated at this time that he had previously dislocated his shoulder while stationed in Vietnam but had no further episodes since then. He stated he retired a few years prior and noticed worsening pain since then and is currently in physical therapy. The Veteran underwent a VA examination in December 2011 where he reported experiencing pain and limited mobility. He stated he had difficulty dressing with shirts and jackets. He stated that after his military service he had a variety of occupations. He stated he spent about 22 years as a truck driver for a wholesale food distribution service which involved heavy lifting on a regular basis, though he did not recall any specific problems with the shoulder during that period. He was last employed for 12 years as a receiver, and then worked on the sales floor of an office supply outlet. He stated this was less physical but did involve frequent lifting to stock shelves. He stated he noticed pain and difficulty in the last few years of this job. He is right hand dominant. On physical examination, the range of motion of the Veteran's left shoulder was 140 degrees flexion with pain at 120 degrees, and 120 degrees abduction with pain at 100 degrees. He was able to perform repetitive-use testing with three repetitions with flexion at 135 degrees and with pain at 115 degrees. The Veteran had additional limitation in range of motion of the shoulder and arm following repetitive-use testing and functional loss/impairment. The left shoulder had less movement than normal with pain. There was normal strength in the left shoulder with flexion and abduction. There was no evidence of ankylosis. Specifically regarding the Veteran's rotator cuff, the Hawkins' impingement test, empty-can test, external rotation/infraspinatus strength test, lift-off subscapularis test, was negative. He has not had a total shoulder replacement or arthroscopic or other shoulder surgery. There was no functional impairment that no effective function remains other than that which would be equally well served by an amputation with prosthesis. An x-ray revealed degenerative or traumatic arthritis of the left shoulder. The examiner determined the Veteran's shoulder condition does impact his ability to work as it would be difficult to do repetitive lifting, pushing, or pulling with the left arm. He would likely have difficulty with heavy lifting or carrying. The Veteran's left shoulder condition would not significantly affect sedentary occupational activities. Following a review of the claims file, a physical examination of the Veteran, and considering the lay statements, the examiner opined it was less likely than not the Veteran's left shoulder condition was incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that: The [V]eteran by his own statements concedes that there was a time lag of many years between the in[-]service injury and the development of significant left shoulder symptoms. On his separation exam no abnormality was reported involving the upper extremities. If the [V]eteran had sustained more severe damage to the left shoulder in service, the expected natural history should have been continued symptoms following the injury or at least an earlier onset of significant symptoms. There is no evidence of record that this in fact occurred. The [V]eteran was able to perform a physical job which involved lifting with the arms for many years without any symptoms or problems involving the left shoulder. He stated to this examiner that almost all of his jobs over the years involved lifting, pulling, pushing or other activities involving the shoulders. Degenerative joint disease-osteoarthritis of the gleno-humeral joint of the shoulder is not common. When present, it is generally the result of repetitive heavy overuse stress of the joint, over a longer period of time. This [V]eteran had such a job for many years and it is more likely that his currently diagnosed degenerative arthritis of the left shoulder is the result of this occupational activity over a period of many years and not the result of his in[-] service left shoulder injury. The examiner also determined that it was less likely as not that the Veteran's diagnosed degenerative joint disease of the left shoulder manifested within one year after the Veteran's discharge from active duty in September 1967. The examiner further explained that degenerative joint disease of the gleno-humeral joint of the shoulder is generally symptomatic when it occurs. Here, the Veteran did not have symptoms within the first year following discharge but many years later. The examiner stated that degenerative joint disease developed over a period of years. Therefore, considering the evidence of record, the Veteran's degenerative arthritis of the left shoulder is more likely the result of repetitive overuse over many years in his civilian occupation and not the result of his reported injury to the left shoulder during service. The examiner opined that the injury during service healed and was not symptomatic at separation from service. For the reasons that follow, the Board finds that service connection is not warranted for residuals of a left rotator cuff injury. Although the Board accepts that the Veteran injured his left shoulder in service, there is no evidence of a left shoulder disorder during service or at separation. Rather, the record demonstrates a post-service onset of the Veteran's left shoulder condition. This is evidenced by the April 2009 VA treatment record showing that the x-rays revealed abnormalities in the left shoulder which, significantly, was the first instance a left shoulder condition was reported. Furthermore, the Veteran consistently stated his left shoulder did not exhibit any symptoms until many years since separation. Here, the Veteran testified in September 2011 that his symptoms started 10 to 15 years prior; over 25 years after 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 the Board where it found that the veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition]. In addition, the December 2011 VA examiner opined that the Veteran's current degenerative joint disease of the left shoulder was less likely as not caused by or a result of his military service, but was in part due to his duties of his civilian occupation after the Veteran's military service. The examiner also concluded it was less likely as not that the Veteran's diagnosed degenerative joint disease of the left shoulder manifested within one year after the Veteran's discharge from active duty in September 1967. The Board has considered the Veteran's assertions that his current left shoulder disorder is due to his military service. In that regard, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing and describing symptoms of pain. His assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Laypersons, however, are not generally competent to render an opinion as to the cause or etiology of any current disability because they do not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). Here, the only evidence of record in support of the Veteran's claim consists of his own lay statements. However, the Veteran's etiological theory has not been supported by a medical professional. In fact, only a negative medical opinion, as discussed, has been associated with the Veteran's claims file. In the same way, the Veteran's separation examination and questionnaire are particularly probative both as to the Veteran's subjective reports and their resulting findings, which reveal that the Veteran never reported in service that his symptoms began either during service or as a result of any in-service left shoulder injury. Again, the Veteran does not allege a continuity of symptomatology but that his symptoms began many years following service. In light of the contrary lay and medical evidence contained in the service and post-service records, the Veteran's lay etiological theory is afforded limited probative value. Accordingly, the Veteran's claim fails on this basis. The Board finds that the Veteran has been accorded ample opportunity to secure and present medical nexus evidence in his favor. He did not do so. See 38 U.S.C.A. § 5107(a) (It is the claimant's responsibility to support a claim for VA benefits). Although the Veteran has established that he currently suffers from a left shoulder condition, the evidence of record does not establish that this condition is the result of a disease or injury in active duty service. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit sought on appeal is accordingly denied. Initial Increased Disability Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). The Veteran was originally granted service connection for PTSD in a January 2009 rating decision. A 10 percent disability rating was assigned effective October 2, 2008, the original date of the Veteran's service connection claim. The Veteran appealed the initial rating assigned, contending that the severity of his PTSD warrants a higher rating. The Veteran's PTSD is currently evaluated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9411. Under such regulations, ratings are assigned according to the manifestation of particular symptoms. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Under the formula, a 10 percent rating is warranted when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress or symptoms which were controlled by medication. A 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment, impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal 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; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. In assigning a PTSD disability rating, the Board also considers Global Assessment of Functioning (GAF) scores. A GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See generally 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (March 31, 1995). A GAF score of 51-60 indicates "[m]oderate 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)." Id. In this instance, the Board finds the Veteran's PTSD disability does not warrant a rating in excess of 10 percent. According to the evidence of record, a December 2008 VA examination report shows that when asked by the examiner to give a list of his mental health problems the Veteran said he had a lot of anger. He also said that he feels out of place a lot of times. He has a difficult time talking in front of a lot of people. He said that he gets "tongue-tied." He reported a lot of "inward" feelings and he said sometimes he has dreams about Vietnam. The Veteran reported taking Citalopram once a day for his PTSD symptoms. The Veteran was married for more than 40 years and his relationship was described as pretty good but he said certain things make him fly off the handle. He has five children and reported having a good relationship with all of them. The Veteran is currently not working because he was making too much for Social Security. He worked at Staples in management and in receiving. He was working about two days a week. In May 2008 he was working fulltime but had to drop down to two days a week and then he made too much money. He does volunteer work for the church at their local food bank and plowing for their church. His job performance is good, although management is noticing he gets angry ever so often. He gets along with his co-workers and his bosses. He is a good worker. Upon mental status examination, his behavior was tense and rigid. His speech was slow, hesitant and monotonous. His mood was depressed and anxious. His affect was appropriate to his mood. There were no indications of depersonalization or derealization. He denied hallucinations or delusions. He denied any suicidal or homicidal ideation. He was fully oriented. Attention, concentration, as well as short term and long term memory appeared to be commensurate with age. Ability for abstract and insightful thinking was within the normal range. Common sense reasoning and judgment as well as moral and ethical thinking were also within normal range. The Veteran reported that he gets about six hours of sleep each night but he wakes up two to three times a night, sometimes to go to the bathroom, sometimes because of his worries. His appetite is "great" but he has difficulty putting on weight. His energy level was described as good but he has difficulty getting up in the morning, but once he is up, he has good energy. His sex drive is always there but he has some trouble with erectile dysfunction. As far as his temper, he is short fused but he is only verbally reactive. He is never physically reactive. He feels depressed with his medicine some of the time and he feels anxious with his medicine all the time. The Veteran reported that he thinks about his stressors at least once a month. When he thinks about it, he feels sick and also lucky to be alive. It intrudes upon his thought process. He has nightmares once a month for awhile and then it will go away. He has symptoms of hypervigilance. He keeps a gun near his bed. He has numbing of general responsiveness and also is over-emotional at times. He startles easily "sometimes." He is bothered by loud noises, and he has a sense of demoralization about the war. The examiner diagnosed the Veteran with PTSD and depressive disorder not otherwise specified secondary to PTSD. The Veteran was assigned a GAF score of 65. The examiner explained that the Veteran's GAF score is in the mild symptoms range. This is because he is a good worker. He does get depressed and anxious. He does have the symptoms on a mild basis but he is functioning fairly well and he has some meaningful interpersonal relationships. Overall, the examiner found that the Veteran's psychiatric symptoms are of a mild nature. He has no problems with alcohol or drugs. His PTSD symptoms only mildly interfere with employment functioning and mildly to moderately interfere with social functioning. The Veteran reports that during the course of the day since he is not working, he works on projects around the house. He does the cooking, cleaning, and grocery shopping. His hobbies include fishing and hunting. He does have a few friends that stay in touch. He socializes with family members, extended and also his current family. His symptoms are transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. According to a September 2009 VA treatment report, the Veteran complained of experiencing "visions" and nightmares of Vietnam service. He felt isolated and had increased irritability. He stated he recently retired (last day of work was September 25, 2009). The Veteran stated he has frequent daytime flashbacks, "visions," of dead bodies he saw during his service and at time feels like he is back there. He reported frequent nightmares of similar nature. He reported getting about five hours of sleep a night due to the nightmares and frequent urination. He stated he was frequently irritable over the past four years with frequent outbursts towards his wife and other which in hindsight seem unprovoked or at least incongruent with actual events. He stated this has been occurring more frequently and he is unable to control it. The psychologist noted that several life stressors in addition to the reexperiencing symptoms seem to have worn the Veteran's reserves and contributed to what appears to be a depressive episode. The Veteran stated he wished he was able to retire later on but his frustration with management and coworkers led to his decision. He stated he was still volunteering with his church's food pantry but aside from this had few recreational activities. The Veteran stated he planned on working on home improvement projects but also stated that his diabetes make it difficult from him to engage in his recreational activities, such as fishing and hunting, as he would need to be accompanied by another person in the event of an insulin-related reaction. The Veteran also stated limited finances limit his activities, resulting in fewer outings with his wife. The VA psychologist reported the Veteran is currently re-experiencing symptoms of increased irritability, anhedonia, and insomnia. The Veteran appears to be depressed and would benefit from a chance to process recent life changes and reevaluate life role and leisure and community activity involvement. The psychologist stated he is experiencing a resurgence of PTSD related symptoms which are likely connected to feeling powerless and anxious. He was diagnosed with major depressive disorder. At the Veteran's September 2011 Board hearing the Veteran provided testimony as to the current nature and severity of his PTSD symptoms. The Veteran testified that he enjoys fishing and has fishing buddies he likes to go with. The Veteran reported that he was married for 43 years to the same spouse and has 5 children. The Veteran said he has a good relationship with them although once in awhile they get upset at him because he barks at them for no reason. He also reported regular attendance at church and was head usher for 26 years. The Veteran said he is a member of the Alpha Association. In November 2012, the Veteran was diagnosed with adjustment disorder with mixed depression and anxiety. The Veteran stated "he buried his wife and his sister-in-law in October. The Veteran had depressed mood and was melancholy. He denied suicidal and homicidal ideation. In December 2012, the Veteran reported he is consistently taking Bupropion and noted a modest decrease in irritability and sometimes an improvement in his mood. It was noted that his wife died in August 2011 and he still misses her. He stated he stays in touch with his children and planned to spend Christmas with them. The Veteran reported his sleep and appetite have been relatively stable within range and he has been functioning. He is very involved in his church, has good support from his family, church friends, and is able to talk with his pastor. The Veteran was alert, cooperative with good eye contact, speech was goal-direct, was thoughtful and serious, affect was appropriate to the content discussed, and insight and judgment was adequate. The GAF score was 58. The examiner stated the Veteran had depressed mood and some variable anxiety in context of the loss of his wife. The Board finds that, overall, the lay and medical evidence of record reflects a level of impairment that is most consistent with the criteria for the current 10 percent rating under Diagnostic Code 9411. In making this determination, the Board observes that while the Veteran reports that sometimes his children get upset with him because he "barks" at them, he also reports having a good relationship with his five children. The Veteran further reports being married to his wife for over 40 years prior to her death. In terms of other social impairment, the Veteran reports being active in his church for a number of years, serving as both head usher and a food bank volunteer. In addition, the Veteran reports enjoying fishing with his buddies and hunting, and is also a member of a military remembrance organization. Moreover, in terms of occupational impairment, the Veteran states in September 2009 that he wished he was able to retire later on, but his frustration with management and co-workers led to his decision. However, the Veteran states at his September 2011 Board hearing that when he was working (at the time of his December 2008 VA examination), he had a good job performance, although management noticed that he would get angry ever so often and that he tried to control it when it did occur. He reports getting along with his co-workers and his bosses most of the time, and that he was a good worker. Additionally, the Veteran reports symptoms of intrusive thoughts, nightmares, hypervigilance, numbing and exaggerated startle response. However, these symptoms, by testimony of the Veteran, tend to occur about once a month during times of stress. Also, the Board observes that the Veteran's symptoms of major depression and adjustment disorder were noted in the VA treatment records of 2011 and 2012 but that these symptoms, as such, were related to the death of the Veteran's wife, not PTSD. Therefore, based on the record evidence, including the Veteran's lay statements and testimony, the effects of the Veteran's PTSD symptoms are described to be of a type, frequency and severity that is consistent with mild impairment, when interacting socially with his family, friends and members of his church community and when performing occupational tasks, and would be in accord with the level of impairment contemplated by the criteria for a 10 percent rating. It is noted that at the Veteran's hearing, the Veteran alleged an increase in his PTSD symptoms. However, the overall record does not support this contention especially in light of the Veteran's testimony at this September 2011 hearing, in which the undersigned VLJ elicited testimony from the Veteran concerning his current PTSD symptoms. The Veteran's testimony at the September 2011 hearing regarding his PTSD shows that the Veteran's symptoms, as described, are consistent with those reported during the Veteran's December 2008 VA examination and are in accord with the criteria for a 10 percent rating. For example, the Veteran reported having a good relationship with his children, regularly attending church, being capable of working full-time (but not doing so to avoid exceeding Social Security income limitations), and having had a good job performance despite his temper and display of anger. In addition, the Veteran also stated most recently in December 2012 that he was still active in his church and had the support of his family and friends. See generally Palcsewski v. Nicholson, 21 Vet. App. 174, 181-183 (2007) (VA's duty to assist does not include providing a new examination based on the mere passage of time). Based upon these findings, and following a full review of the record, the Board has determined that the preponderance of the evidence is against a finding that the Veteran's disability should be rated in excess of 10 percent. Since grant of service connection, the Veteran's PTSD has been no more than 10 percent disabling, therefore the requirements for a rating of 30, 50, 70, or a 100 percent have not been met. As the Board finds that the record presents no basis for an assignment of more than a 10 percent rating for PTSD, there is no basis for staged ratings of the disability pursuant to Fenderson and Hart. Fenderson, 12 Vet. App. at 126; Hart, 21 Vet. App. at 509-10. Also considered by the Board is whether the Veteran's PTSD warrants referral for extra-schedular consideration. The above determination is based on application of pertinent provisions of the VA's Schedule for Rating Disabilities. There is no showing that his PTSD reflects so exceptional or unusual a disability picture as to warrant the assignment of an evaluation higher than the 10 percent rating. See 38 C.F.R. § 3.321(b)(1). There is no indication that his PTSD results in interference with employment. Moreover, the Veteran's condition is not shown to warrant hospitalization, or to otherwise render impractical the application of the regular schedular standards. The Veteran reported no previous psychiatric hospitalizations or emergency room visits for his PTSD. In the absence of evidence of such factors, the Board is not required to remand the claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER Entitlement to service connection for residuals of a left rotator cuff injury is denied. Entitlement to a rating in excess of 10 percent for service-connected PTSD is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs