Citation Nr: 1331147 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 08-22 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for diabetes mellitus. 4. Entitlement to service connection for peripheral neuropathy. 5. Entitlement to an increased rating for posttraumatic stress disorder (PTSD) greater than 10 percent prior to November 17, 2011. 6. Entitlement to an increased rating for posttraumatic stress disorder (PTSD) greater than 30 percent beginning November 17, 2011. 7. Entitlement to a finding of total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Chris Loiacono, American Veterans Disability Advocates WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H.J. Baucom, Counsel INTRODUCTION The Veteran had active service from August 1968 to August 1970 with additional service in the reserves. This matter comes to the Board of Veterans' Appeals (Board) from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In May 2013, a Board hearing was held at the RO before the undersigned; the transcript is of record. At the Board hearing the Veteran testified that he was withdrawing his claim for service connection for coronary artery disease. The Board notes that per Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for an increased rating contains an implicit claim for total disability based on individual unemployability (TDIU) when the Veteran presents evidence of unemployability. As the Veteran has presented evidence of unemployability due to his service connected disabilities, including based upon the disability on appeal, the issue is considered to be on appeal as it arises out of the claim for an increased rating. The Veteran's virtual VA file has been reviewed. The issues of service connection for tinnitus, diabetes mellitus and peripheral neuropathy and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have right ear hearing loss for VA purposes. 2. Prior to November 17, 2011 the Veteran's overall psychiatric disability picture encompasses occupational and social impairment with occasional decrease in work efficiency. 3. Beginning November 17, 2011 the Veteran's overall psychiatric disability picture encompasses occupational and social impairment with occasional decrease in work efficiency. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). 2. The criteria for a 30 percent rating, but no higher, for PTSD prior to November 17, 2011, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012). 3. The criteria for a rating greater than 30 at any time during the appeal period have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist claimants 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, 3.159 and 3.326(a) (2012). A July 2006 letter satisfied the duty to notify provisions. 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 also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They 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. In this case, during the May 2013 Board hearing, the VLJ identified and fully explained the issues on appeal, and asked questions focused on the elements of service connection and increased rating needed to substantiate the Veteran's claims. Furthermore, the VLJ specifically questioned the Veteran regarding outstanding and potentially pertinent records that may have been overlooked, and suggested that such records be obtained. The outstanding potential records identified by the Veteran at the hearing are addressed in the remand section below. The record was held open for 60 days after the hearing during which time the Veteran submitted additional private medical evidence, with waiver. The Veteran was assisted at the hearing by his representative. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing, as to the issues decided at this time. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. Although the Veteran had been receiving ongoing VA mental health treatment at the time of the November 2011 VA examination, the Veteran reported that he had stopped going to treatment as of June 2011. There is no indication that the Veteran resumed treatment or that additional general medical treatment records would contain information not already in the claims file. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). VA examinations were conducted in February 2007 (audiological and mental health), March 2009 and November 2011; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The February 2007 examination was adequate as the examiner reviewed the record, evaluated the Veteran and provided an opinion as to whether the Veteran had right ear hearing loss. The three PTSD examinations were adequate as the examiners evaluated the Veteran's current disability level and provided findings to allow for proper application of the rating criteria. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the issues decided at this time, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Analysis Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Hearing loss shall be considered a disability when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The Veteran is already service connected for left ear hearing loss based upon noise exposure in service. The Veteran contends that he also has right ear hearing loss due to service. Service treatment records show normal hearing upon entry and a normal whisper voice test upon discharge. In February 2007 a VA examination was conducted. After testing the examiner diagnosed normal hearing thresholds for the right ear with excellent speech recognition scores. The examiner reviewed the claims file noting that the Veteran had normal hearing upon entry with only a whisper voice test administered upon discharge, which she stated was inadequate to detect high frequency hearing loss, therefore the Veteran's current hearing loss was at least as likely as not caused by service. The examiner's opinion that hearing loss is due to service, only relates to the Veteran's left ear hearing loss, as that is the only ear that has actually hearing loss. The February 2007 VA examination revealed the following audiological results. February 2007 HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 25 25 The Maryland CNC speech recognition scores were 96 percent on the right. Objective testing very clearly shows that there is no right ear hearing loss disability for VA purposes. No pure tone threshold is over 26 decibels, or exceeds 40 decibels. Speech recognition is 96 percent. As such, the claim for right ear hearing loss must be denied as a matter of law. The Veteran testified that he had reduced hearing acuity in his right ear. The Veteran is competent to report what he experiences through his five senses, such as difficulty hearing. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, diagnosing hearing loss for VA purposes, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Veteran does not have right ear hearing loss disability; there is no doubt to be resolved; and service connection for right ear hearing loss disability is not warranted. Increased Rating In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Psychiatric disabilities are evaluated under a general rating formula for mental disorders. All psychiatric disabilities are evaluated together regardless of the diagnoses. Under the general rating formula, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A disability rating of 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. A disability rating of 70 percent is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. A total schedular rating of 100 percent is assigned when the condition results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV); see also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). A GAF score between 41 and 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job). Id. A GAF score between 51 and 60 is indicative of 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 coworkers). Id. A GAF score between 61 and 70 is indicative of mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, but generally functioning pretty well, has some meaningful interpersonal relationships. Id. There were multiple VA examinations and the Veteran has received VA mental health treatment during the appeal period, although he reportedly stopped going to treatment in June 2011. The Veteran filed his claim for an increased rating in June 2006. In February 2007 a VA examination was conducted. The Veteran reported that he spends most of his day trying to make a buck. He denied difficulties completing his activities of daily living. The Veteran reported that "I should probably work but I can't my back is jacked up. I'd just rather stay home. I isolate myself." He reported that he never really had friends and could not remember the last time he socialized with friends. When asked, the Veteran described his symptoms vaguely and frequently changed the subject. He stated that he had been avoiding things that he had to deal with later problems. The Veteran described himself as a loner and that he works on trying to avoid conflict. He reported becoming irritable when watching the news. The Veteran reported sleep problems for which he takes Tylenol PM, and without which he would be unable to sleep. He reported frequent napping. The Veteran reported experiencing disturbing dreams related to a conflict of some sort. He denied symptoms of anxiety, suicidal ideation and homicidal ideation. The Veteran denied intrusive thoughts and reported that now that he has grandchildren he tries to make life easier. The VA examiner noted that the Veteran appeared on time and in dirty pants. His speech was slow but at normal tone and volume. The Veteran's affect was reactive and mood congruent. His mood was euthymic; his thought processes were tangential and vague. No evidence of hallucinations, delusions, obsessions, compulsions or phobias were observed. His judgment was fair and insight was poor. The examiner opined that the Veteran's current symptoms did not meet the criteria for PTSD as he was unable to identify symptoms of PTSD and denied experiencing intrusive thoughts. He did appear to isolate himself socially, to experience conflicts in the workplace, experience disturbed sleep and irritability. His symptoms did not appear to be related to combat and are not severe or frequent enough to warrant a clinical diagnosis at this time. The examiner noted a GAF score of 70. In November 2007 the Veteran reported for treatment and presented with problems dealing with nightmares of traumatic events, intrusive thoughts of the same, flashbacks, hyper arousal, hyper vigilance, startle reaction, isolating, numbing, and loss of interest. He was observed to by dysthymic and flat, casually dressed and unkempt. He denied suicidal or homicidal ideation. The provider noted a GAF of 50. In January 2008 the Veteran reported specific intrusive thoughts and flashbacks from Vietnam. He appeared alert and oriented, cooperative with logical and goal oriented thought process, and neatly groomed. The provider noted a GAF of 45 and labeled his condition as "PTSD, Chronic, Moderate to Severe." In February 2008 he reported that his thoughts of traumatic events were vivid and he had trouble sleeping. He continued to isolate himself and only socialized through his wife. The provider noted a GAF 45. In April 2008 the Veteran was evaluated by a medical doctor. He reported similar symptoms of nightmares, intrusive thoughts and difficulty sleeping with some irritability. He reported his mood was "not bad most of the time". The Veteran reported sleeping 8-9 hours a night and no guilt or problems concentrating. He reported thinking that he might be better off dead but never had any attempts or plans, and no homicidal intent or attempts. The medical doctor found the Veteran had "very vague" PTSD symptoms and wasn't really endorsing depression or irritability but was hypervigilant with a GAF of 60. In May 2008 the Veteran indicated that he was feeling less depressed and the provider noted a GAF score of 55. In March 2009 a VA examination was conducted. The Veteran reported living alone but spending his days helping his children by babysitting his grandchildren and tearing down an old house on the farm. He rarely cooks for himself, and showers two to three times per week, and does not clean his house. The Veteran reported having a few friends that he sees once a week "but I kind of avoid them." He reported being depressed sometimes. He did not know the symptoms of PTSD and had difficulty identifying symptoms. The Veteran was tearful when reporting stating that he was "kind of a cry baby." He reported suicidal ideation as recently as two days prior, but denied any attempts but also stated that he took risks. The Veteran denied any plans or intent, and denied homicidal ideation. The Veteran appeared on time in clean clothing, unshaven with mild body odor. No other hygiene deficits were observed. His speech was slow but normal in tone and volume without pressure. The Veteran's affect was depressed. He was tearful and his energy was low. His mood was depressed. The Veteran's thought processes were goal directed and judgment was fair. He appeared lethargic and reported low energy, negative thoughts and guilt and tearfulness. He was grieving the loss of his wife. The Veteran's symptoms appeared to be mildly impacting his functioning. His symptoms appear to meet the criteria for major depressive disorder due to loss of his wife. He did have some guilty feelings about behavior in Vietnam but not enough symptoms to warrant a clinical diagnosis of PTSD. The examiner diagnosed major depressive disorder with GAF of 63. A psychological impairment questionnaire was completed by the Veteran's treating mental health therapist and signed off on by a family doctor (Dr. SV) in January 2011. The questionnaire diagnosed PTSD with current GAF of 45 and the lowest and highest GAF in the past year also being 45. The following clinical findings were 'checked': deficiency in family relations, deficiencies in work, depression affecting ability to function independently, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living, deficiencies in mood, and intrusive recollections of traumatic experience, inability to establish and maintain effective relationships. The Veteran was noted to be markedly limited in almost all mental activities. In November 2011 a VA examination was conducted. The Veteran reported retiring seven years prior from working in a state prison. The Veteran reported living alone, but he visits his grandchildren and children as they do not like his house. He reported attending church and that he will go to Wal-mart with his grandchildren. He gets up at five thirty in the morning and runs errands. He also checks with A job service as he is trying to find employment and would like to work, but it is difficult with his multiple health problems. He indicated that he would like to teach. He stated that he enjoys hunting, fishing and hiking. The Veteran reported having fitful sleep but not remembering his dreams and waking up in a sweat. He reported avoiding talking about his experiences and trying not to think about it. The Veteran reported feeling detached from others and that he does not have friends because they will take advantage of you. He indicated he did not have much to look forward to. The Veteran averaged 5 to 6 hours of sleep. He reported not being in current treatment for his condition with his last session in June 2011. The Veteran was not taking any medication and denied suicidal and homicidal tendencies. The examiner noted that it was questionable if the Veteran is able to maintain activities of daily living due to his poor personal hygiene as observed. The examiner found that social functioning was impaired by lack of social interest and lack of involvement in social activities. Employment was noted to be not impacted due to psychological issues but due to health problems. The examiner diagnosed PTSD with GAF of 58 to 60 and noted the severity to be occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks but generally satisfactory functioning. He was noted to have difficulties with self care, avoidance and isolation. Symptoms were severe enough to require continuous treatment; however, he was not currently in treatment. A May 2013 private psychological disability examination report was submitted. The private psychologist, JR, reported reviewing the Veteran's records and conducting a clinical interview with one mental status examination over the telephone. The Veteran reported being last employed in 2004 at the Department of Corrections. He reported feeling overwhelmed by the pressures and demands of work but he had held the job for 17 years after which time he retired. He reported that he has applied for other jobs since this time, but he has remained out of work as he has been unable to find employment. JR found the Veteran to be oriented to person, place and time. There was no evidence of formal thought disorder, hallucinations, delusions or any florid or major underlying psychopathology and thought processes were normal. JR reported that the Veteran endorsed 24 of the 32 potential symptoms of the mental health symptoms checklist including general nervousness; tension; excessively watchful and overly cautious; anxiety/fear; bad or troubling dreams/nightmares; sleep disturbance; feeling weak and fatigued; concentration problems; forgetfulness; irritability/impatience/arguments with others; tendency to withdraw/isolate self; sad mood/depressed/crying spells; sensitivity to noise; recurrent thoughts/dwelling ruminations; avoidance of situations; flashbacks; increased distractibility; hopelessness about the future; persistent worries that something bad will happen; frightening thoughts and images; anger or irritability for no particular reason; loss of interest or pleasure in common activities; increased appetite and feeling apathetic/no motivation. He concluded that the Veteran is suffering from moderate to marked psychological psychiatric disability and based on history, examination and review of records, he has PTSD with functioning permanently impaired by depression and anxiety, flashbacks, and maladaptive social behaviors. JR diagnosed the Veteran with PTSD with moderate psychosocial stressors and a GAF of 50. JR found the Veteran was psychologically impaired to the extent that he should not presently attempt a return to the workforce, as psychoactive medications are needed to further stabilize the dysfunctional symptoms. Employment would require vocational training and a supportive work environment. He concluded that the Veteran's condition had a moderately to markedly negative effect on his ability to perform full time independent work in a competitive work setting. JR opined that eventually, with psychological care and appropriate psychoactive medications, he would be capable of limited low stress work placement in a supported sheltered supervised work setting. He noted that the Veteran's overall ability to remember and understand instructions was unimpaired, his ability to concentrate and sustain persistence of work tasks was moderately impaired, and his overall ability to deal with the stresses of work was moderately to markedly impaired. JR recommended that the Veteran is in need of ongoing psychotherapy and psychotropic medications to afford progress towards psychiatric and psychological stability. The Board finds that during the entire time period on appeal the Veteran's overall psychiatric disability picture encompasses occupational and social impairment with occasional decrease in work efficiency, which is consistent with a 30 percent rating. The Veteran's PTSD symptoms do not warrant a higher 50 percent rating as the overall disability picture does not encompass consistent symptoms of occupational and social impairment with reduced reliability and productivity. The Veteran's symptoms do cause some social impairment. However, they are not of the frequency, severity, and duration of a 50 percent rating. Notably the Veteran is involved with his children and grandchildren - including frequently watching them. He attends church weekly, runs daily errands and searches for employment. He took a vacation with his grandchildren. In November 2010 he reported attending a gun show and visiting his daughter at the Air Force Base. The Veteran's symptoms also cause occasional decrease in work efficiency. Although the May 2013 private psychologist, JR, found the Veteran was psychologically impaired to the extent that he should not presently attempt a return to the workforce, other evidence of record does not support this conclusion. JR stated the Veteran's condition had a moderately to markedly negative effect on his ability to perform full time independent work in a competitive work setting. JR did opine that with psychological care and appropriate psychoactive medications, he would be capable of limited low stress work placement. However JR also noted that the Veteran's ability to remember and understand instructions was unimpaired, and his ability to concentrate and sustain persistence of work tasks was only moderately impaired, but his ability to deal with stresses of work was moderately to markedly impaired. He also noted that the future employment would require vocational training. The Board notes that the Veteran is not currently working but, as the Veteran himself has reported, this is because he retired from his prior job in 2004 and has not been able to find work yet although he is actively looking. He has also reported that a large impediment to him working has been his back problem. The November 2011 VA examiner found that the Veteran's employment was not impacted by his psychological problems but due to his other (physical) health problems. The same examiner also concluded that the Veteran had only an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but that he had generally satisfactory functioning. The Veteran even told the May 2013 private psychologist that he was not currently working because he had not found a job yet, not that he was unable to work because of his psychiatric symptoms. The Veteran's other symptoms are not of the frequency, severity or duration to cause the level of impairment encompassed in the 50 percent rating. In February 2007 his judgment was observed to be fair but insight poor. In April 2008 he reported no problems concentrating. At the March 2009 VA examination, although the Veteran's symptomatology was worse - a depressed mood and affect -as he was grieving the loss of his wife, the VA examiner still noted that his symptoms only mildly impacted his functioning. The May 2013 private psychologist found the Veteran's memory to be unimpaired and only mild impairment of his ability to understand and follow directions. The Board notes that at various times there have been GAF scores of 45, but all have been from counselors, not medical professionals. For example, in February 2008 the Veteran reported difficulty sleeping and intrusive thoughts and the counselor assigned a GAF score of 45, but in April 2008 he had very similar symptomatology, including reporting difficulty sleeping and intrusive thoughts, but the medical doctor assigned a GAF score of 60. A GAF of 45 is indicative of serious symptoms and impairment, however serious symptoms to support such a score are not described in the symptomatology. There are no signs of severe symptoms. A few times the Veteran did report on occasion thinking he would be better off dead, but he is not consistently thinking about it and is not preoccupied with it. He denied any plans or attempts. The Veteran does not have any obsessional rituals or habits. He was married until his wife died in 2008. He attends church and visits family. The Veteran has reported being unable to keep a job, but providers have consistently noted that the impediment to him finding a job was his health problems, not his psychological disability. A GAF of 45 is inconsistent with the record. The Board notes that GAF scores are but one factor to consider when determining the Veteran's overall level of impairment. As a general matter the Board must consider whether a veteran's particular disability is the type of disability for which lay evidence is competent. Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the specific rating for a psychiatric disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Veteran is competent to report experiencing intrusive thoughts, nightmares and difficulty sleeping, as those are things he experiences through his five senses. He is not competent to provide objective observations of his condition as have been provided by medical professionals. The Board has considered the level of impairment the Veteran's symptoms, to include the frequency, severity, and duration, cause in the areas of social and occupational impairment and finds that they do not cause the level of impairment of a 50 percent rating. Prior to November 17, 2011 a higher, 30 percent rating, for PTSD is warranted. At no point during the time period on appeal, is a rating higher than 30 percent for PTSD warranted. Extraschedular Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Ratings in excess of that assigned are provided for certain manifestations of the service-connected PTSD such as occupational and social impairment with deficiencies in most areas to include for example, but not limited to, suicidal ideation, obsessional rituals, illogical or irrelevant speech, and other serious symptoms, however those manifestations are not present in this case. The evidence demonstrates that the schedular criteria reasonably describe the Veteran's disability level and referral for consideration of an extraschedular evaluation is not warranted here. ORDER Service connection for right ear hearing loss is denied. An increased rating of 30 percent, but no more, prior to November 17, 2011 is granted, subject to the laws and regulations governing payment of monetary benefits. An increased rating greater than 30 percent at any time during the appeal period is denied. REMAND A remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. At the May 2013 Board hearing the Veteran testified that he was told by a VA doctor, Dr. B, that his tinnitus (described as bell ringing and echoing) was related to his in-service construction work. The claims file does not have complete VA treatment records; therefore, a remand for such records is required. At the Board hearing the Veteran testified that recently he tried to get life insurance but was told that he had diabetes. He testified that the life insurance company did their own separate blood work. A remand to assist the Veteran in obtaining such records, for complete VA treatment records, and for an examination to determine whether he has diabetes mellitus and/or peripheral neuropathy is required. Further development is warranted to ascertain whether the symptoms attributable to the service-connected disorders more nearly approximate the criteria for a total rating based on unemployability. The Court has held that a TDIU claim may not be denied without producing evidence, as distinguished from mere conjecture, that the Veteran's disability does not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In Friscia, the Court specifically stated that VA has a duty to supplement the record by obtaining an examination which includes an opinion on what effect the appellant's service- connected disability has on the ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a) (West 2002); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2009); Beaty v. Brown, 6 Vet. App. 532, 537 (1994) and Obert v. Brown, 5 Vet. App. 30, 33 (1993). The Board finds that the Veteran requires a current VA examination to ascertain whether unemployability due to his service-connected disabilities is demonstrated such that a TDIU may be granted on a schedular basis, or in the alternative whether it should be referred to the VA Director of Compensation and Pension for extra-schedular consideration. 1. Provide the Veteran with an authorization to allow the VA to assist him in obtaining complete copies of all medical testing conducted in conjunction with his recent application for private life insurance. Inform the Veteran that he may also submit any such records on his own. 2. Contact the Veteran and request that he supply a properly completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Notice compliant with 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159, as well as applicable case law, should also be provided. 3. Obtain and associate with the claims file all outstanding VA treatment records from March 2012 to present. Be sure to include all records from a Dr. B, as identified by the Veteran at the May 2013 Board hearing. 4. Schedule the Veteran for a VA examination to determine whether he has diabetes mellitus and/or peripheral neuropathy. The examiner should note that the Veteran was in the Republic of Vietnam, he is presumed to have been exposed to herbicides. The entire claims file (i.e. both the paper claims file and any medical records contained in Virtual VA) should be made available to and be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any treatment records contained in Virtual VA file must be printed and associated with the paper claims file so they can be available to the examiner for review. If the Veteran has a diagnosis of diabetes mellitus and peripheral neuropathy, the examiner is asked to provide an opinion as to (1) whether it is at least as likely as not that peripheral neuropathy was caused or aggravated by diagnosed diabetes mellitus or (2) whether peripheral neuropathy began in service or is related to any injury or disease in service. 5. Review the claims file to ensure that all of the requested development listed above is completed, and arrange for any additional development indicated. Then readjudicate the claims for service connection for tinnitus, diabetes mellitus and peripheral neuropathy. 6. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Readjudicate entitlement to TDIU under 38 C.F.R. § 4.16(a) and (b). 7. If the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs